TMI Blog1968 (12) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... tter of sale to the sugar company. It is firstly argued by Mr. Thakkar, for the appellant, that the rejection of the motion at this stage will frustrate the appeal and the motion, therefore, must be granted. This argument is very often made and is very convenient for the appellant who is usually interested in delaying the proceedings. The fundamental principles of the Civil Procedure Code as laid down in Order 41, rule 5, are that mere admission of an appeal would not amount to a stay and granting of stay of the proceedings under the decree or of execution proceedings depends upon the discretion of the court which discretion must, of course, be exercised judiciously, and hiving regard to all the circumstances of the case. There is authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in liquidation. It was only because the properties were in possession of the liquidator that the Industrial Finance Corporation agreed that the liquidator should effect the sale and pay the amount due to it first out of the sale proceeds. It is, under these circumstances, that the sale is being held by the liquidator. Mr. Thakkar argued that the scheme is feasible and in any event the sale is proposed for a highly inadequate price and the court should not conscientiously permit such a sale. Now, the success of the scheme must depend on several factors. Most of them are in the region of chance because of fluctuating prices both of sugarcane and also of jaggery which is intended to be produced under the scheme. What is objectionable, howev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. If the matter is adjourned there is bound to be delay and the sugarcane season has practically started. If the purchaser is able to take the properties to-day it can make some effective use of the properties for earning some money for the amount that it is paying towards the price. If the sale is to be delayed and the season is advanced it would be impossible for it to keep its capital locked up and lose the income. There is, therefore, justification for the purchaser to say that if there is delay in the sale, the sale is off. Even if ultimately the creditors accept the scheme, there are many hypothetical factors which have been assumed, viz ., that the machinery will be ready within a certain time and that business can commence in Oc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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