S. Ravindra Bhat, J.@mdashIn CM No. 477/2013, Amartex Industries Ltd. (hereafter called "Amartex") seeks recall of an order of this Court dated 27.04.2012 (which declined to consider CM No. 5306/2012, until an amount of 25% of the bid amount was deposited). In CM No. 478/2013 it seeks an order for discharge of an undertaking given by it to the Court at an earlier stage of the proceeding, for purchase of extent of 77 killas of land in Village Jharmari and another extent of land measuring 9 killas in Village Kurli (both in the State of Punjab, referred to as the "subject lands", listed at nos. 4 and 10 of the advertisement issued by the first respondent). CM No. 10845/2010 is an application by the Committee-Golden Forest India Ltd. (hereafter "the Committee") seeking enforcement of the undertaking given by Amartex and a direction to the latter to deposit back an amount of 25% of the bid amount i.e. Rs. 21 crores, with interest @ 16% p.a.
2. The applicant company in pursuance of an advertisement in February 2006 issued by the Committee submitted bids in respect of two properties listed at no. 4 and no. 10 of the advertisement. A sum of Rs. 10 lakhs was fixed for each property for participation in the bid and the applicant deposited 20 lakhs for the two bids. The terms of the bid were first, that highest bidder would be required to deposit 25% of the bid amount within 15 days of acceptance of the bid by the Committee, second, the balance 75% was to be deposited within 30 days from date of acceptance of the bid, subject to confirmation of this Court as indicated in the order of 5.9.2006, and third, the amount tendered for participation in the bid could be forfeited for failure to deposit the sale consideration. Having bid the highest, the applicant deposited about Rs. 20 crore towards 25% of the bid amount. Since the Committee was unable to finalize the sale of the properties bid for, the applicant moved an application in the transfer case before the SC to withdraw the 25% of the total bid amount deposited by it, as it was facing a liquidity crisis, having reached its credit limit with the bank.
3. The SC by its order dt. 6.9.2007 permitted the withdrawal, subject to the applicant filing an undertaking to redeposit the amount. The applicant filed the undertaking on 11.9.2007 and the amount of 25% was refunded to it. An application of confirmation of sale was moved by the Committee before the Supreme Court (SC) and by its order dated 29.7.2009, the Court confirmed the sale of the properties by. The applicant was directed to deposit the entire bid amount within a period of 6 months from the date of this order. The order of the Supreme Court reads as follows:
As regards Item Nos. 4 and 10 properties, the purchasers were permitted to withdraw their deposited amount of 25%. They are directed to deposit the entire bid amount within a period of six months. On deposit of the same, the Committee shall see that the properties are put in possession of these parties.
If any of the bidders fail to deposit the balance 75% amount within a period of six months, 25% amount already deposited, will be forfeited.
I.A. is disposed of accordingly.
4. Having received confirmation of the sale, the Committee filed an application before this Court to enforce the order of the SC dated 6.9.2007 (which allowed the withdrawal of the 25% amount subject to an undertaking to redeposit the amount when the sale was confirmed) and sought that Amartex be directed to redeposit the withdrawn amount with an interest of 16%. On 19.2.2011, this Court ordered that the applicant pay Rs. 21 crore towards the deposit and Rs. 5 lakh towards costs, by 25.2.2011 with the Registrar General of the High Court. The applicant, by way of CM 3774/2011 for correction of the order, sought to protect its right to demonstrate to the Court that there was a defect in title over the land sought to be auctioned, as the land was declared "surplus land". This application was dismissed on 18.3.2011.
5. At this juncture, the applicant filed an SLP against this interim order of 18.3.2011 before the Supreme Court, and an IA in the transfer case before the Supreme Court as well as CM No. 10845/2010 before this Court, seeking modification of the order confirming auction dated 29.7.2009. On 21.4.2011, the Supreme Court dismissed the SLP and the IA as withdrawn, and granted liberty to the applicant to apply for appropriate relief before this Court. The said order reads as follows:
After hearing Mr. Mukul Rohtagi learned senior counsel appearing for the petitioner at length in view of the order of this Court dated 3rd February, 2010 we are not inclined to entertain the above special leave petitions. However, in view of the specific directions in the order dated 3rd February, 2010 we permit the High Court to go into the applications being filed by the applicant and decide the same, in accordance with law uninfluenced by any of the order/observation made by this Court on earlier various occasions In view of our conclusion, learned counsel seeks permission to withdraw the special leave petitions and I.A. No. 120 in T.C. No. 2 of 2004. Permission is granted. The petitioner is permitted to move the High Court for appropriate relief as observed above. The special leave petitions and I.A. No. 120 are dismissed as withdrawn accordingly.
Pursuant to this liberty granted, in CM No. 6273/2011, the applicant moved this Court praying for modification of the order dated 29.7.2009 as well as discharge from the undertaking dated 11.9.2007. This application was withdrawn by Amartex on 27.03.2012. The relevant part of the order made on that day by this Court reads:
CMAPPL. 6273/2011 (modification of order)
In this application filed by the applicant, following prayers are made:
a) Allow this application and modify the order dated 29.72009 passed by this Hon''ble Court in l.A. Nos. 60-83, 85-90 and I.A. No. 91-92 and 93, 94, 95-96 in T.C. (C) no. 2/2004 entitled the Securities and Exchange Board of India Vs. The Golden Forests (India) Limited; in view of the permission granted by the Hon''ble Supreme Court vide order dated 21.4.2011 in SLP (C) no. 8986-8987 of 2011 with I.A. No. 120 in T.C. No. 2 of 2004;
(b) direct that the sale and its confirmation order by this Hon''ble Court are withdrawn and the undertaking of the appellant dated 11.9.2007 is discharged;
(C) pass such other order or orders as this Hon''ble Court may deem fit and proper in the facts and circumstances of the case After some arguments, learned counsel for the applicant seeks permission to withdraw this application. The application is accordingly dismissed as withdrawn.
6. Amartex, seeks, in CM No. 5306-07/12 revival of its application CM No. 6273/2011, and argues that the subject lands were declared surplus by the State of Punjab as evidenced by the Status Report dated 29.1.2004 filed in the transfer case no. 68 or 2003 (filed before the Supreme Court). The Status Report of the Committee reads as follows:
That it has recently come to the notice of the provisional Liquidator that some State Governments have declared the lands of GFIL and its associated companies as surplus Holding. The collector Agrarian, Dera Bassi, District Patiala, Punjab has declared huge areas of the land held by GFIL and its associate companies as surplus areas. The collector Agrarian, Hoshiarpur has also declared 10236 Kanals out of 10344 Kanals held by GFIL as Surplus and 3403.19 Kanals out of 3535.16 Kanals of land held by Golden Project Limited(GPL) as surplus land under provisions of the Land Reforms Act, 1972.
7. The Tehsildar Derabassi also has stated that the "properties in question are declared surplus and sale of land in village Jharmari of M/s. Golden Forest (I) Ltd. is stayed by the Financial Commissioner (Appeals)" (see RTI reply in Annexure O). The applicant, in order to finance the purchase of the properties applied for a loan; a non encumbrance certificate however could not be given (see legal opinion dated 25.3.2011 at Annexure P) as the title of the property could not be conveyed in view of the ongoing surplus proceedings. The loan facility was also denied to the applicant by the Bank for this purchase as the owner was found not to have valid and clear title, to convey title to the applicant.
8. Amartex also argues in its CM No. 5306/2012, that during the hearing of CM No. 6273/2011, the following request was made:
8. The counsel for the applicant made a oral request to the Court to record his statement that prayer clause "b" is withdrawn and accordingly the application be dealt by this Hon''ble Court in terms of prayer clause "a" of CM No. 6273 of 2011. However, the above request was declined.
9. It is humbly submitted that the applicant is diligently pursuing his case for Honouring his undertaking dated 06.09.2007 filed in the Hon''ble Supreme Court. However, in view of the land in question being under surplus, the applicant after placing the facts and circumstances before this Hon''ble Court as well as the Supreme Court applied for modification of the order dated 29.07-2009, of the Supreme Court, (which order confirms the sale and directs the applicant to deposit the bid amount) and specifically pleaded his willingness and readiness to deposit the sale amount after the properties in question are released from surplus. For facility of reference, the applicant craves for leave of this Hon''ble Court to refer to and rely upon order dated 18.03.2012, passed by this Hon''ble Court in G.M. No. 3774 of 2011 marked as Annexure--A, order dated 29.03.2011 passed by this Hon''ble Court in G.M. No. 10845 of 2010, marked as Annexure-B I order dated 24.1.2011, passed by the Hon''ble Supreme Court marked as Annexure --C, order dated 04.05.2011, passed by this Hon''ble Court in G.M. No. 6273 of 2011 marked as Annexure D
10. It is humbly submitted that a valuable legal right of the applicant is lost and it shall be put great hardship, in as much as vide order dated 27.3.2012 it has been made liable to deposit a sum of Rs. 20,83,48,991/- in terms of the undertaking dated 11.9.2007 although, the applicant took timely steps by taking recourse of legal remedies and by clearly putting forth its case to the effect that "its inability to pay the amount in terms of the undertaking (supra) is in view of the fact that the title of the property sold in auction sale, is not clear and as soon as it is free from surplus, the applicant shall immediately complete the auction sale, which fact was taken note of by the Hon''ble Supreme Court as well as the Hon''ble Court, therefore it is prayed that in view of the facts and circumstances of this case as well as orders passed by this Hon''ble Court and the Hon''ble Supreme Court, the applicant be granted permission to revive CM. No. 6273 of 2011, dismissed as withdrawn vide order dated 27.03.2012, passed by this Hon''ble Court and the statement made be read as to delete prayer clause (b) of the application. Copy of the order dated 27.3.2012, passed in CM. No. 6273 of 2011 is marked as Annexure-E
9. Arguing on behalf of Amartex, Mr. Majitia states that the status report filed in the Supreme Court in 2004 by the Committee as well as the fact that the pursuit of legal proceedings by way of appeals and revisions under the Punjab Land Reforms Act, 1972 shows its awareness that the subject property was surplus land, the title to which had vested in the State. It was argued that Amartex had consistently maintained this position and highlighted this grievance, complaining that the Committee had suppressed these vital and material facts with respect to the lands being declared surplus. Counsel submitted on the basis of pleadings that the cloud over title and the Committee''s inability to hand over vacant possession with marketable title meant that Amartex was discharged from depositing back the amounts withdrawn by it. Learned Counsel urged that the CM No. 3774/2011 and CM No. 6273/2011 had highlighted these aspects as well as the inequity in the Committees insistence (through CM No/10845/2010) that it should deposit back the earnest money withdrawn. 10. Mr. Majitia argued that while CM No. 5306/2012 sought the revival of CM No. 6273/2011 (which was dismissed as withdrawn in the order dated 27.3.2012), the Court as a precondition for hearing that application directed deposit of the 25% amount in the order dated 27.4.2012 and that order is thus sought to be recalled in CM. 477/2013. The last application CM 478/2013 seeks discharge of the undertaking dated 11.9.2007.
10. It was argued that till an order on the merits of Amartex''s contention is made, it has the right to seek vacation of the undertaking. In this regard, learned Counsel relied on the Supreme Court''s order dated 21.4.2011 (which dismissed the SLP against CM No. 3744/2011). He also argued that Amartex cannot be compelled to part with any money without conveyance of valid title to the lands to it.
11. Mr. Harpawan Kumar Arora, counsel for the Committee, highlighted that Amartex never protested with respect to the title to the property. It was submitted that when the sale confirmation by the Supreme Court took place on 29.7.2009, Amartex never raised the question of cloud over title. Its non-compliance with the Supreme Court''s order led to cancellation of the bid on 1.2.2010 and forfeiture of the earnest money. Despite awareness of this development, Amartex chose not to challenge the cancellation and forfeiture order. It was argued importantly that when the Committee preferred CM No. 10845/2010, Amartex started raising the plea of cloud over title to the subject property. It was submitted that there is no new development which should impel this Court to go into such plea seeking vacation or recall of its undertaking, since this cloud over title was known from the time of filing of the Status Report in 2004. Learned counsel argued that the dismissal of CM No. 3774/2011 and withdrawal of SLP against that order, the withdrawal of CM No. 6273/2011 and non-compliance with the order of 27.4.2012 in CM No. 5306/2012 should result in dismissal of all please by Amartex.
12. The above narrative would disclose that the subject lands were auctioned sometime in 2006. The Applicant, Amartex, is right in contending that in a status report filed before the Supreme Court in the year 2004, the then appointed Provisional Liquidator of GFIL disclosed that several lands belonging to that company were declared "surplus" under the Punjab Land Reforms Act. Equally, the lands were put to auction after the status report was filed in the Supreme Court. In order to satisfy itself, the Court had required the Committee to furnish a copy of the newspaper advertisement calling for invitations to bid. The subject lands were described in serial numbers 04 and 10 of the advertisement. The advertisement contained general instructions. Instruction No. 4 stated that "Before submitting sealed bid, the intended purchasers are advised to inspect the govt. revenue record of the property". The advertisement cautioned the bidders that the properties were offered on "As is Where Is and Whatever There Is..." basis. This aspect assumes significance, because of the subsequent events.
13. Amartex deposited the 25% earnest money amount in 2006. The condition in the bid and the caution meant that it had inquired into the nature of the property and the title to it; yet it felt it worthwhile to make its offer. It later sought liberty from the Supreme Court to withdraw the amount deposited; that Court granted the request on 06.09.2007, subject to Amartex furnishing an undertaking to deposit back that sum. On 29.07.2009, the sale was confirmed. On that date-as on the previous dates, i.e. 06.09.2007, or even earlier, when the amount was deposited with the Committee, Amartex aired no grievance with respect to cloud or defect over title or the Committee''s inability to convey the properties to it. When it failed to comply with the terms of the order of the Supreme Court (dated 29.07.2009) requiring deposit of the entire sale consideration within six months, the Committee filed CM No. 108456/2010 seeking to enforce the undertaking and compel the deposit of amounts. It was only after Amartex received this application, and notice upon it, that it preferred CM No. 3774/2011, claiming that it ought to be relieved from the duty of depositing the amount, due to defect in title arising out of the vesting of the title to the property in the state. That application was dismissed on 18.03.2011. Interestingly, on 10.2.2011, in CM No. 10845/2010, Amartex''s undertaking through its Managing Director, Shri Arun Grover that the sum of Rs. 21 crores would be deposited back in court, with Rs. 5 lakhs as costs was recorded. In an affidavit styled as one filed in compliance, Amartex again sought to urge the issue of cloud over title. The affidavit stated that so long as valid title could be assured, the company would deposit the amount, provided time was granted to it.
14. Amartex''s SLP was disposed of on 21.04.2011 by the Supreme Court, which granted liberty to it to file yet another application. Pursuant to this, CM No. 6273/2011 was filed. After hearing, learned counsel inexplicably withdrew it on 27.03.2012. In the application CM No. 5306/2012, Amartex urges that it was willing to withdraw prayer (b) in CM No. 6273/2011 ("(b) direct that the sale and its confirmation order by this Hon''ble Court are withdrawn and the undertaking of the appellant dated 11.9.2007 is discharged") but not the other claim in prayer (a), i.e. recall of the first order of 29.07.2009. The subsequent two applications CM No. 477/13 and CM No. 478/2013 are consequential; the former seeks recall of the order in CM No. 5306/2012 (dated requiring the pre-deposit of the 25% amount as a precondition for hearing CM 5306/2012); the latter seeks discharge of the undertaking given to court.
15. Even if this Court were to, for a moment, concur with Amartex''s plea that its grievance is that the Committee cannot insist on deposit or refund of amounts paid as earnest money, the fact remains that there is no explanation why the previous applications, especially CM No. 6273/2011 was withdrawn. The plea made in CM No. 5306/2012 that its counsel wished something to be recorded, but that the court made some other order, is not only unconvincing but appears plainly to be contrary to the record. Firstly, CM No. 6273/2011 was withdrawn on 27.03.2012. In that application, the Committee, in its reply had disclosed that the noncompliance with the Supreme Court''s order requiring the entire amounts to be paid (as per order of 29.07.2010) had entailed forfeiture of the sale itself on 01.02.2010. That aspect has not been refuted; Amartex has not challenged that development. Secondly, the plea in CM No. 5306/2012 that it was willing to withdraw prayer (b) which was for a direction to discharge it from the undertaking given to court, is facially illogical and inconsistent with it stand. Furthermore, the pleadings in CM No. 6273/2011 and CM No. 5306/2102 mention some Right to Information Act queries made by Amartex in respect of the subject lands. The documents do not reveal when these queries were replied; there is no precision about the exact detail and description of lands to the extent of 1200 Kanals in Tehsil Derabassi. However, in respect of the second property, i.e. Item No. 10 of the advertisement which Amartex had bid for, even the reply to the RTI query mentioned that the lands could be sold by the Committee.
16. It would be relevant to extract, at this stage some of the pleadings in CM No. 6273/2011, which in effect seek review of the Supreme Court''s order of 29.07.2009:
F. Because the Committee had known the above-said facts i.e. the status of some of the properties including the properties for which the applicant made a bid was declared surplus and statutory proceeding qua the same are pending before the revenue authority, therefore, any step taken by the Committee and that results in making a representation, in consequence of which a person like the applicant made a bid and invested huge amounts is doing violence to the order passed by the Hon''ble Supreme Court and causing unlawful pecuniary loss to a bonafide purchaser as the applicant who made a huge investment and also undertook the re-deposit amount on an understanding that the Committee was able to convey the properties to it as the title is clear, however it cannot be conveyed and therefore, without review of the order dated 29.7.2009 and an assurance that the properties are free from encumbrance the applicant is a no position to make a commitment and any undertaking is subject to the property be conveyed to the applicant, for the reason that to make the entire deposit of the auction amount, the applicant will have to take recourse to raise funds and liquidity from banks and financial institutions, which will not be granted on appraisal of current status of the properties, put to auction sale by the Committee.
G. Because it defies reasoning that a higher power Committee could act irresponsibly and without getting an order from the revenue authority of clearance qua the property in question from the purview of the Surplus Act, the Committee could conduct an auction sale and thereafter move an application to hold that the applicant unilaterally committed an abuse of the process of the Court, nay, state that it is guilty of and is liable for Contempt, which is manifest from the fact that the Committee moved the Hon''ble High Court of Delhi for seeking enforcement of the order dated 29.7.2009, passed by the Hon''ble Supreme Court and seeking a direction to the applicant to re-deposit the entire amount without their being a mandate. This is being so stated as the Committee has filed an application seeking direction from this Hon''ble Court and one such direction was "to deal with the surplus land declared by the Punjab Government under the Urban Land Ceiling Act or otherwise
17. If Amartex was of the view that the confirmation and conditions imposed by the Supreme Court should not have been made, there is nothing on record to suggest that such an argument was made before that Court. This Court is conscious of the fact that right through, at all material time, i.e. in 2004 (when the status report was filed); in 2006 when the sale was made; in 2007 (when the amount was permitted to be withdrawn) and on 29.07.2009, the question or aspect of defect/cloud over title to the subject property was before the Supreme Court. Amartex, as bidder for the property, was aware of this aspect. It was only in 2010, when the Committee sought to enforce the under taking that the question of cloud over title of subject lands was sought to be advanced, through applications. The first of these was rejected; the second, filed after liberty was granted by the Supreme Court, was withdrawn. In these circumstances, the Court holds that in the absence of any new development, or a clear or definitive averment in any pleading, in the past applications, or any pending application that there was willful or deliberate suppression of material facts, this Court is precluded from going into the matter. The Court also notes that Amartex has not complied with the orders dated 10.2.2011 and 27.04.2012 requiring deposit of the amounts by it.
18. For these reasons, it is held that what is sought by CM No. 5306/2012 a review of the order dated 27.03.2012 without disclosing any material on the face of the record. CM No. 477-78/2013 ask the court to yet again revisit the same issue, without explaining why the previous orders were erroneous, or why CM No. 6273/2011 was withdrawn in the first place, without liberty. In these circumstances, the applications filed by Amartex, i.e. CM No. 5306-07/2012, CM No. 477-78/2013 are without merit; they are consequently dismissed. For these reasons, CM No. 10845/2010 is allowed; Amartex shall deposit the amount in terms of the Supreme Court''s order dated 29-07-2013 within two months from today.
