National Investor Forum Regd. vs Golden Forests India Ltd.
2015 Latest Caselaw 90 Del

$~10 & 11
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                       Decided on : 08.01.2015
+      REV. PET.352/2014 IN W.P.(C) 1399/2010

       NATIONAL INVESTOR FORUM REGD.                        ..... Petitioner

                               versus

       GOLDEN FORESTS INDIA LTD.                            ..... Respondent

+      W.P.(C) 1400/2010

       NATIONAL INVESTORS FORUM                             ..... Petitioner

                               versus

       GOLDEN FORESTS INDIA LTD.                            ..... Respondent

                               Through : Sh. Narender. S. Yadav and Sh. Harpal

Singh Saini, Advocate, for Review Petitioner.

Sh. Harpawan Kumar Arora, Advocate, for Committee-GFIL.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE R.K. GAUBA

MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT)

% REV. PET.352/2014 IN W.P.(C) 1399/2010

1. The applicant/petitioner seeks review of the judgment and order of this Court dated 28.04.2014. At the outset it is noticed that this application was adjourned on several previous dates. Today also, a request for

W.P.(C) 1399/2010 & W.P.(C) 1400/2010 Page 1 adjournment is sought on the ground that the senior advocate is not available. The Court declined it.

2. The impugned judgment of the Court dated 28.04.2014 had declined the application of the review petitioner - M/s. Amartex Industries Ltd., which had, pursuant to an advertisement offering lands belonging to the erstwhile GFIL, submitted its tender. M/s. Amartex Industries Ltd. had bid for two properties listed at nos. 4 and 10 of the advertisement. Being the highest bidder, it had to deposit 25% of the bid amount within 15 days of acceptance of the bid and 75% of the balance within 30 days of the acceptance of the bid, subject to confirmation of this Court. The applicant deposited `20 crores towards 25% of the bid amount. Since the finalization of the sale of the properties could not be completed, the applicant - M/s. Amartex Industries Ltd. moved the Supreme Court for permission to withdraw 25% of the total bid amount. The Supreme Court by its order dated 06.09.2007 permitted withdrawal of the said amount subject to the applicant undertaking to re-deposit the amount, which it did on 11.09.2007. The 25% amount was accordingly refunded. The confirmation of sale application moved by the Committee was confirmed by the Supreme Court on 29.07.2009. The Committee, therefore, filed an application before this Court on 06.09.2007 and sought that M/s. Amartex Industries Ltd. be directed to re-deposit the withdrawn amount. On 19.02.2011, the Court directed M/s. Amartex Industries Ltd. to deposit `21 crores towards deposit and `5 lakhs towards costs, with the Registrar General. By C.M. No.3774/2011, M/s. Amartex Industries Ltd. sought for correction of order, and protection of its right to demonstrate to the Court that there was defect

W.P.(C) 1399/2010 & W.P.(C) 1400/2010 Page 2 in the title of the property sought to be auctioned, since it was declared "surplus". That application, i.e. C.M. No.3774/2011 was dismissed on 18.03.2011. The applicant preferred a Special Leave Petition (SLP) against that order, also seeking modification of the previous orders. That SLP was dismissed on 21.04.2011. The applicant was permitted liberty to approach this Court yet again. Consequently, M/s. Amartex Industries Ltd. filed C.M. No.6273/2011, seeking modification of order dated 29.07.2009 (granting confirmation) as well as discharge from the undertaking of 11.09.2007. That application, i.e. C.M. No.6273/2011 was dismissed as withdrawn, by the statement of M/s. Amartex Industries Ltd. on 03.07.2012. It is in these circumstances that M/s. Amartex Industries Ltd. has yet again re-agitated the matter by filing C.M. Nos. 5306-5307/2012, seeking revival of C.M. No.6273/2011, arguing that such lands were declared "surplus" by the Punjab Government, as evidenced by the status report of 29.01.2004 filed before the Supreme Court.

3. This Court, by its detailed order (which had noticed all previous orders recorded all the contentions of both parties, especially the series of applications moved by M/s. Amartex Industries Ltd.) and their outcomes, was of the opinion that M/s. Amartex Industries Ltd. was not entitled to relief.

4. The relevant part of this Court order in that regard dated 28.04.2014 reads as follows:

"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

W.P.(C) 1399/2010 & W.P.(C) 1400/2010 Page 3 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 non-compliance 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.

XXXXXX XXXXXX XXXXXX

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 undertaking that the question of cloud over title of subject lands was sought to be advanced, through applications. The first of these was rejected;

W.P.(C) 1399/2010 & W.P.(C) 1400/2010 Page 4 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."

5. It is argued that this Court did not take into consideration the fact that the tender which was ultimately accepted, was a contract. The contract was incapable of performance on account of its frustration or impossibility. Learned counsel urged that this aspect was never gone into by the Court.

6. We are afraid that it is too late in the day for M/s. Amartex Industries Ltd. to contend that the question of frustration was not gone into. Its whole endeavour in placing reliance on the status report filed by the Committee for GFIL before the Supreme Court vis-a-vis the lands being declared surplus, was to show not only that material facts were being suppressed (which ultimately would have resulted in the offer itself resulting in a contract based upon mistake), but also the fact that eventually, the contract would have

W.P.(C) 1399/2010 & W.P.(C) 1400/2010 Page 5 resulted in impossibility of performance, so long as the order declaring surplus subsists. Consequently, the contention is insubstantial and unmerited. Even otherwise, this contention was never urged or pleaded in any of the original applications and cannot be gone into by this Court having regard to the limited nature of review proceedings. Consequently, the review is dismissed.

W.P.(C) 1400/2010

List on 28.01.2015 along with W.P.(C) 1399/2010.

S. RAVINDRA BHAT (JUDGE)

R.K. GAUBA (JUDGE) JANUARY 08, 2015

W.P.(C) 1399/2010 & W.P.(C) 1400/2010 Page 6