JUDGMENT :

G.S. Singhvi, J.

1. Leave granted. The appellant is aggrieved by judgment dated 12.9.2008 of the Division Bench of the Gujarat High Court whereby the appeal preferred by respondent No.2 - Bipin B. Lathia against order dated 12.11.2007 passed by the learned Company Judge in Company Application No. 504 of 2007 was allowed and the Official Liquidator was directed to complete the formalities

for execution of the sale deeds in respect of the property belonging to M/s. Global Arya Industries Limited (hereinafter referred to as, "the Company") in his favour.

2. By an order dated 27.4.2006 passed in Company Petition No. 106 of 2002, the learned Company Judge ordered winding up of the Company and appointed the Official Liquidator attached to the High Court as Liquidator of the Company. The proposal submitted by the Liquidator in the form of Report No.162 of 2006 for sale of the assets of the Company including land, building, plant and machinery, furniture, fixtures and all other movables (except records) at L.S. No.202/3P, SIDC Main Road, village Veraval, District Rajkot was approved by the Company Judge and a committee was appointed for conducting the sale. After due deliberations, the committee decided to advertise sale of the assets of the Company. In furtherance of that decision, advertisements were issued in vernacular and English newspapers showing reserve price of the land etc. as Rs.64 lakhs. After considering the bids and further offers made before the Court, the learned Company Judge passed an order dated 30.8.2007 and approved the highest offer of Rs.127 lakhs given by respondent No.2.

3. Soon thereafter, the appellant filed Company Application No. 450 of 2007 for recall of order dated 30.8.2007

by stating that it was interested in making an offer of Rs.141 lakhs. The learned Company Judge dismissed the application by observing that the revised offer made by the appellant was an afterthought and there was no tangible reason to review the earlier order.

4. Undeterred by rejection of one application, the appellant filed another application, which came to be registered as Company Application No.504 of 2007, for recall of order dated 30.8.2007. After considering the rival submissions, learned Company Judge vide his order dated 27.11.2007 allowed the second application. The relevant portions of that order are extracted below:

“13. If the above conduct of the applicant is to be viewed in light of the latest judgment of the Hon'ble Supreme Court in the case of Divya Manufacturing Company (P) Limited (Supra), it is clear that though the sale was confirmed in favour of respondent No.2, neither the possession of the movable properties was handed over nor the sale deed was executed in favour of respondent No.2. Unless and until these formalities are over, it cannot be said that the transaction is complete and before that, if higher offer is made, the Court would certainly consider and at that point of time, it is to be seen as to whether the earlier transaction is by virtue of fraud. The real criteria is that the property of the Company in liquidation should fetch maximum price and whether the properties can be adjudged on the basis of the offers which are received. Here in the present case, the applicant has offered Rs.1.51 Crores. If that is to be considered as market value then in that case, certainly the offer of Rs. 1.27 Crores made by respondent No.2 and accepted by the Court earlier cannot be said to be an adequate price and hence, the Court is well within its power to reconsider the case. The authorities cited by the learned advocate appearing for the respondent No.2 are confining to the facts of those cases. Even in the case of Divya Manufacturing Company (P) Limited, a distinction was sought to be drawn by submitting that there was condition laid down in the tender document empowering the Court to set aside the sale. Irrespective of the fact whether any such condition is there or not, the Court is well w