The court established that the forfeiture of EMD is applicable upon withdrawal of bids unless there are circumstances warranting cancellation of the auction, requiring fresh valuation.

ORDER

Heard learned advocate Mr.Mitul Shelat with learned advocate Ms.Disha N. Nanavaty for the applicant, learned advocate Mr.Jeet Bhatt for the respondent No.1 and learned advocate Mr.Tirth Nayak for the respondent No.3.

1. The Official Liquidator of M/s. Essen Computers Limited (in liquidation) preferred Official Liquidator Report No.54 of 2021 with following prayers :

“a) This Hon'ble Court may be pleased to take on record aforesaid facts, as stated herein above.

b) This Hon'ble Court may be pleased to considered the outcome of e-auction and pass appropriate order as may be deemed fit and proper under the circumstances of the case and as per the Terms and Conditions of sale.

c) This Hon'ble Court may be pleased to considered the outcome of e-auction and pass appropriate order as may be deemed fit and proper under the circumstances of the case and as per the Terms and Conditions of sale.

d) This Hon'ble Court may be pleased to permit the Official Liquidator to pay advertisement bill of Rs.

2,07,133/- to advertising agency M/s. Global Network Advertising froms the fund available in Company’s account.

d) This Hon'ble Court may be pleased to direct successful bidder to pay cost of Rs. 30,000/- to e-auction agency if sale is confirmed in their favour, otherwise Official Liquidator may direct to pay an amount of Rs.10,000//- to e-auction agency if auction may fails and sale is not confirmed in favour of successful bidder.

e) Such other and further orders and directions as may be considered just and appropriate may also be passed.”

2.1. Learned advocate Mr.Bhatt appearing of the Official Liquidator for the Company in liquidation submitted that this Court vide orders dated 12th January, 2021 and 21st January, 2021 passed in Official Liquidator Report No.94 of 2020 directed the Offiical Liquidator to publish an advertisement in newspapers namely “Gujarat Samachar” Gujarati daily in all Gujarat Edition and “Times of India” in Ahmedabad Edition for inviting offers for sale of assets of the Company in liquidation situated at Plot No.A/10, GIDC Electronics Estate, Gandhinagar from the intending purchasers fixing the upset price for Rs.9,20,00,000/- and 10% Earnest Money Deposit (EMD) Rs.92,00,000/- and also fixed the sale scheduled by the Court.

2.2. It was further submitted that as per the orders dated 12.01.2021 and 21.01.2021 passed by this Court, an advertisement was published on 22nd January, 2021 by the Official Liquidator for sale of the aforesaid property. Pursuant to the advertisement, six tenders were sold and only one bid/offer was received from the applicant of the Company Application No.18 of 2021. 3.1. This Court (Coram: Hon’ble Mr.Justice N.V.Anjaria) passed the following order on 26th February, 2021:

“By an order dated 12.1.2021, auction was scheduled to be held today i.e. on 26.2.2021 @ 4.00 pm. This OL Report has been filed bringing on record the fact that only one bidder namely;

City-pulse Theater Pvt. Ltd has applied pursuant to the e-auction notice. The auction scheduled to be held today i.e. on 26.2.2021 @ 4.00 pm. is postponed to 26.3.2021. Issue NOTICE, returnable on 26.3.2021 on which date if the respondent – secured creditor has no objections then appropriate orders pursuant to e-auction notice can be taken.

The Registry to communicate this order through email.”

3.2. It appears that thereafter, the applicant of Company Application No.18 of 2021 has prayed for the following reliefs :

“1.

That this Hon'ble Court may be pleased to direct the Official Liquidator to refund to the Applicant the EMD amount of Rs.92,00,000/ along with interest thereon from 25.02.2021 till date of payment.

That during the pendency of the present app