TMI Blog2019 (11) TMI 1382X X X X Extracts X X X X X X X X Extracts X X X X ..... question. Whether to reopen the concluded auction proceeding for the reason higher offer is made by one of the petitioners, in respect of sale of property in question? - HELD THAT:- In view of the fact that except allegation of fraud and collusion, no evidence in that regard brought on record by any of the petitioners, we are of the considered view that this is not a fit case to reopen the auction proceeding only because slightly higher offer is made by one of the petitioners than the auctioned price. Change of condition relating to negotiation - HELD THAT:- It is clear from the facts that the objection was raised to the said condition. Accordingly the said condition was modified in view of Circular of the Central Vigilance Commission, dated 25.10.2005 which envisages that there should not be any negotiations. Negotiation if at all shall be an exception and only in the case of proprietary items or in case of items with limited source or supply. Negotiations shall be held with L-1 only. Counter offers tantamount to negotiations and should be treated at par with negotiations . Hence, there are no illegality in modification of condition of negotiation to the effect that to hol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner, was based on valuation reports of two Government approved valuers and likewise due consideration to market value as per Government ready reckoner, was given. 3. The respondent Liquidator, on 03.05.2019, published E-Tender notice in two leading State level widely circulated newspapers and also published it on the webpage created by E-tendering agency. 4. The auction in question, was held on 28.05.2019. In all five bidders had participated in the said auction including the petitioner in Writ Petition No. 7784/2019. Offer of ₹ 12.06 crores of the respondent-highest bidder Kailash Balaprasadji Ajmera, was accepted by respondent authorities after negotiation. The highest bidder accordingly deposited the auctioned price of the property in question with the Liquidator. Albeit the offer of the petitioner in Writ petition No. 7784/2019, was ₹ 11,21,21,111/-. 5. This court, vide order dated 27th June, 2019, permitted the respondents authorities including liquidator to carry out further process, however, directed not to issue final allotment order and may not be parted with the property. 6. Shri Salunke, learned counsel appearing for the petitioner in Writ Petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion No. 4266/2011 dated 29th November, 2011. 13. Shri P. S. Patil, learned Addl. Government Pleader appearing for the Commissioner, submits that by letter dated 01.04.2019, the Liquidator had submitted a proposal for auction of property of the Bank and requested to grant approval to upset price quoted in the proposal. He points out that, based on the valuation reports of two private Government approved valuers and likewise considering the market value as per Government ready reckoner, the Commissioner granted permission for auction with the upset price ₹ 10,64,17,000/-, vide permission letter dt. 08.04.2019, on certain conditions including the condition to hold negotiations with all the bidders. 14. He further submits that subsequently the said condition of negotiation was modified vide letter dt. 16.5.2019, to the effect that the negotiation shall be held with the highest bidder only. The said condition was modified considering the objection received pertaining to said condition, relying upon a circular of the Central Vigilance Commission dated 25.10.2005. Thus he submits that, there is no illegality committed as alleged in fixing of upset price or modifying the condit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... higan Rubber Ltd. Vs. State of Karnataka and others;2017 (5) Mh. L.J. 651, D.G. Road Safety Pvt. Ltd. Vs. MSRTC and others; 2014 (2) Mh. L.J. 673, Saj Enterprises Vs. Municipal Corporation Bombay. 19. To consider the rival contentions of the parties, firstly as regards upset price, this Court thought through the valuation reports to make the realistic appraisal of the factors considered at the time of valuation. In the valuation report submitted by one Mr. Sanjay Chandak who is having Education qualification B.E. (Civil) NIE, FIV, he has calculated the Upset price of the property to the tune of ₹ 10,64,17,000/which includes valuation of the land, building and other miscellaneous amenities. 20. In the valuation report of one Mr. Sanjay S. Kapse who is also a Government approved valuer, the Upset price was determined to the tune of ₹ 10,59,56,040/which also includes the cost of land, building and other miscellaneous items like compound wall etc. Both the Government approved private valuers while arriving at a particular price, have considered the property as a commercial property and also taken into consideration various factors including location of the property, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bidder after negotiation was ₹ 12.06 corers which was accepted by the Commissioner. The petitioner in W.P. 7784/19 subsequent to acceptance of offer of successful bidder, had raised his offer to ₹ 13.71 corers. No justification put forward by the said petitioner as to why the offer of ₹ 13.71 corers made by him subsequent to acceptance of offer of highest bidder, was not made at the initial stage. 26. In the case of Vedica Procon Private Ltd. (supra) cited by the successful bidder, the Hon'ble Supreme Court, after considering and relying upon various judgments, in para 47, has held thus: 47. A survey of the above mentioned judgments relied upon by the first respondent does not indicate that this Court has ever laid down a principle that whenever a higher offer is received in respect of the sale of the property of a company in liquidation, the Court would be justified in reopening the concluded proceedings. the earliest judgment relied upon by the first respondent in Navlakha Sons laid down the legal position very clearly that a subsequent higher officer is no valid ground for refusing confirmation of a sale or offer already made. Unfortunately, in Di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able to the present case. 30. In the case of Union Bank of India (Supra), the facts were different. In the said matter, valuation report was kept secret as confidential document and it was not disclosed to the Bank and therefore, the Bank was not in position to raise any objection. In the said case also, it was observed that in the price offered at the first instance and the price offered subsequently, there was vast difference, and therefore, looking to the irregularities, the Hon'ble Supreme Court allowed the appeal. In present case the facts are different, therefore, the said judgment is not applicable to this case. 31. In case of Allahabad Bank(Supra) again the valuation report was not disclosed and in comparison with the valuation of ₹ 6,22,16,875/- it was noticed that the market value of the said property was three times more than the offer made and thus on the ground of inadequate price, non disclosure of valuation report and for non fixing the reserved price, the Hon'ble Supreme Court allowed the appeal. However, Such irregularities or lacunas are not there in the present matter, therefore, the said judgment is not applicable to the facts of the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that the objection was raised to the said condition. Accordingly the said condition was modified in view of Circular of the Central Vigilance Commission, dated 25.10.2005 which envisages that there should not be any negotiations. Negotiation if at all shall be an exception and only in the case of proprietary items or in case of items with limited source or supply. Negotiations shall be held with L-1 only. Counter offers tantamount to negotiations and should be treated at par with negotiations . Hence, we do not find any illegality in modification of condition of negotiation to the effect that to hold negotiation only with the highest bidder instead of with all the bidders. 36. On modification of said condition of negotiation, the time period was extended upto 24.05.2019 from 17.5.2019. It is also clear from the facts that the petitioners in writ petition No. 7784/2019, submitted his offer on 24.05.2019. Thus on the date of submission of offer, the petitioner was aware of modified condition and inspite of the same he did not raise any demure to modified condition and participated in auction. 37. It is now well settled law that the conditions of tenders cannot be challenged ..... X X X X Extracts X X X X X X X X Extracts X X X X
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