HARADHAN MUKHERJEE Vs. MONOJIT SEN

JUDGEMENT

(1.) This is an appeal against the order of the learned trial Judge dated July 25, 1990, passed in C.P. No. 179 of 1983, C.A. No. 201 of 1984. By the said order the learned trial Judge recorded that the learned Advocate appearing on behalf of the Applicant, Haradhan Mukherjee, submitted that he was in a position to proceed in the matter. In that view of the matter the application taken out by judgment dated March. 20, 1990, was dismissed and an interim order was vacated. Prior to that order the learned trial Judge has also passed two other orders which are, inter alia, as follows:

(2.) The order dated March 23, 1990, passed by the learned Judge is as follows:

(3.) The fact of this case in short is that the liquidated company in question was a family concern of two brothers, viz. Smarajit Sen and Monojit Sen. Because of the in -fighting between the two brothers, the company became commercially insolvent, and on the petition of the concerned creditor under Sec. 434 of the Companies Act, 1956, the company was directed to be wound up and went into liquidation by the order dated November 4, 1981, passed by the Hon'ble T. K. Basu J. (as His lordship then was). Between November 1981 to November 1985 Smarajit Sen, elder brother of the Respondent Monojit, tried his best to purchase the liquidated company as a going concern. On December 20, 1985, the said Smarajit Sen recorded in open Court his failure in purchasing the said company when the learned trial Judge fixed an open Court auction sale of the said company to be held on January 1986. The said open Court bid and auction was held on January 10, 1986, and in the said auction the Appellant Haradhan was declared highest bidder and, as such, the auction purchaser. The said auction sale held on January 10, 1986, made in favour of the Appellant herein, Haradhan, was confirmed with the knowledge of the Respondents, Monojit and his wife Dipali Sen. It is stated that an application was filed by Oriental Sales Agency before the learned trial Judge on November 24, 1986, which was allegedly put up by Smarajit and Monojit for cancellation of the said auction sale on the ground that the said Oriental Sales Agency had better and higher offer to purchase the said company in liquidation. The said application filed by Oriental Sales Agency was heard in presence of Monojit Sen and Dipali Sen, the Respondents herein on November 24, 1986, when the learned Counsel appeared on their behalf submitted that the said auction sale was confirmed in favour of the present Appellant, Haradhan, should be cancelled and fresh advertisement inviting fresh offer for re -sale should be ordered for cancellation of the present auction sale which was already made and was duly confirmed by the learned trial Judge. The said stand was supported by the Oriental Sales' Agency. After a long, contested hearing the said application filed by Oriental Sales Agency was dismissed by order dated November 24, 1986, and the prayer made by and on behalf of the Respondents Monojit and Dipali for re -advertisement for re -sale upon cancellation of the said auction sale was rejected. Against the said order dated November 24, 1986, Oriental Sales Agency preferred an appeal, but the Respondents Monojit and Dipali Sen did not prefer any appeal against the said order dated November 24, 1986, nor did they apply to be added as parties to the appeal preferred by the Oriental Sales Agency. On May 13,1986, the said appeal preferred by Oriental Sales Agency was dismissed for non -prosecution and the said Oriental Sales Agency had it recorded in the said Court of Appeal that they were no longer interested in purchasing the said company. It is stated that in view of all the proceedings in the liquidation sale being blocked in the Court of Appeal from November 27, 1986, to May 13, 1987, leave was granted by the Division Bench before whom the appeal was pending to the Appellant herein to apply before the learned trial Judge for all appropriate orders including extension of time for payment of the purchase price in terms of the said auction sale. It is stated that the Division Bench before whom the said appeal was pending could not make any order to that effect in view of the dismissal of the said appeal. On May 20, 1987, the matter was mentioned for appropriate order in terms of leave granted by the Division Bench with notice to Oriental Sales Agency whereupon Mrs. Monjula Bose J. (as Her lordship then was) passed the following orders: