K. Abraham Mathew, J.

1. The first respondent is a company. It is a debtor of the 2nd respondent Kerala state Industrial Development Corporation. In CP No.25/2006 filed by the 2nd respondent the court ordered winding up of the 1st respondent and appointed the Official Liquidator attached to the High Court as the Liquidator of the company. Pursuant to the directions issued by the Court the Official Liquidator took possession of all the properties of the 1st respondent Company. On 11.04.2011 the court permitted the Official Liquidator to sell the immovable properties of the Company. The Official Liquidator put up for sale 63.160 cents comprised in Survey Nos.444/4 and 444/5 with the building thereon situated at Karimpana in Kuthattukulam. Only 3 tenders were received. The highest amount of Rs.35,11,111/- was quoted by the appellant. Thereafter, three persons offered higher amounts, the highest of the three being Rs.45,55,555/-. The court directed the Official Liquidator to ascertain the fair value of the land. The total value of the land and the building thereon was fixed at Rs.50,60,300/-. The court cancelled the previous sale and directed the Official Liquidator to sell the property afresh. He published the sale in Malayala Manorama and the Indian Express, both leading news papers circulated in Kerala. The upset price was fixed at Rs.45,55,555/- which was the highest amount quoted by the stranger after the first sale. But there was no bidder. Pursuant to the direction issued by the court the property was put up for sale for the third time. The appellant submitted a tender quoting Rs.36,66,885/-. On 30.06.2013 the 3rd respondent filed Company Application No.249/2013 offering Rs.50,00,000/-. He also undertook to pay Rs. 1,00,000/- as compensation to the appellant. Thereupon, the court passed the following order:

“i) The applicant in Co. Application No.357/2013 shall pay a sum of Rs.l lakh as compensation to the applicant in Co.Appln.No.249/2013 as compensation on or before 31.12.2013.

ii) The applicant in Co.Appln.No.357/2013 shall also furnish a Bank Guarnatee for Rs.20 lakhs in order to prove the bonafides of his offer and participation.

The Bank Guarantee can be withdrawn by the KSIDC in case the applicant in Co.Appln.No.357/2013 becomes the successful bidder and only the balance amount need be paid under the circumstances. The Bank Guarantee shall be furnished on or before 15.1.2014 and fresh sale shall be conducted on or before 28.2.2014. The sale already conducted will stand set aside on the applicant in Co.Appln. No.357/2013 paying Rs.l lakh to the applicant in Co.Appln.No.249/2013 and furnishing Bank Guarantee for Rs.20 lakhs as directed above.

The upset price for the fresh auction shall be fixed at Rs.50 lakhs and the Official Liquidator is directed to file fresh terms and conditions for the sale. The bid of the applicant in Co.Appln.No.249/2013 shall be accepted and the sale confirmed in case the applicant in Co.Appln.No.357/2013 fails to comply with the conditions as above."

This order is challenged in this appeal.

2. It is submitted by the learned counsel for the appellant that in the absence of an allegation of fraud or other vitiating circumstances the learned Company Judge should not have ordered sale of the property for a 4th time and should not have taken notice of the offer made 11 months after the third sale by a person who did not take part in the earlier auctions.

3. In the counter statement submitted by the Official Liquidator it is stated that the value of the land has increased since the last auction and the sale in favour of the appellant may not be confirmed. Learned counsel for the second respondent-creditor also supported the direction of the Company Judge for resale.

4. There is no dispute that there is no allegation of fraud or other vitiating circumstance in the sale conducted by the Official Liquidator. The question that comes up for consideration is whether in the absence of any vit