2007 PLP 1409 (CLC)

MUNIB AHMAD KHAN, J,

Through this appeal, the appellant .has challenged the authority of the Court in providing an opportunity to the contesting bidders towards improvement of the auction price, on the ground that the Court has to follow Order XXI, rules 77 and 92, C.P.C. In a suit filed under Admiralty Jurisdiction, where an order was passed for sale of sugar weighing 17,326.300 metric tons through Official Assignee/Commissioner, who after publicizing the tender for sale in different newspapers, conducted the sale and by reference intimated that one of bidders, Messrs Moro Trading Company was highest with an offer of Rs.21,200 per metric ton. On the date when reference was taken up for orders, other bidders increased their offers and highest bidder was Messrs Sapna Traders and Builders with an offer of Rs.23,000 per metric ton. Keeping in view the competition, one more opportunity was provided to the bidders who originally participated or have applied in Court through various applications or any other person. To this arrangement; the appellant objected on the ground that since it was the highest bidder to the fall of hammer before Official Assignee/Commissioner, therefore, fresh- bids could not be ordered for improvement. However it sought permission to participate in improvement proceedings, which was granted. Anyhow, no improvement was made and Messrs Sapna Traders and Builders remained the highest bidder with an offer of Rs.23,000 per metric ton. Early confirmation was sought by the Official Assignee/Commissioner due to nature of the goods as it was being affected by the moisture. The reference was taken up by the learned Single Judge and it confirmed the reference by accepting the offer of Messrs Sapna Traders and Builders, as -the objection of the learned counsel for the appellant and arguments thereon could not satisfy the learned Single Judge. Before us, Mr. Abul Inam, learned counsel for the appellant has contended that it was a sale by public auction, therefore, rules 77 and, 92 of Order XXI,' C.P.C. were applicable and that any improvement after first bid could not be ordered as there was no element of fraud etc. or irregularity in conducting the same. Towards his arguments, he has relied. upon PLD 1987 SC 512, AIR 1940 Madras 42, AIR 1960 Andra Pardesh 429, AIR 1930 Lahore 236 and 2005 CLD 1737. He has contended 'that on completion of first bid, processed by Official Assignee/Commissioner, the offer of the appellant has matured and could not be rejected until there are valid legal reasons. Orr the other hand, Mr. Samiuddin Sami, learned counsel for the respondent No.1 has supported the order of the learned Single Judge dated 30-5-2007 and has stated that valid reasons have been given therein for improvement of, bids and thereafter acceptance of highest bid and that auction was not governed by rules 77 and 92 of Order XXI, C.P.C. but with the terms and conditions given in the tender/sale notice, He argued that in the condition of tender/sale notice, the Official Assignee/Commissioner has retained power to call the bidders for negotiation and that offers were ;subject to confirmation by the Court and thereafter the purchase price to be deposited within 15 days from the date of confirmation. After hearing the learned counsel for the parties, we have examined the basic document, through which the offers were invited. The relevant clauses of the tender/sale notice floated by Official Assignee/Commissioner are reproduced hereunder:-- (i) The undersigned may cancel the tenders without assigning any reason or call the bidders for negotiation. (ii) All tenders are subject to confirmation of the Honourable High .Court of Sindh, Karachi. (iii) Balance of the purchase price shall be deposited within 15 days from the date of confirmation of otter, failing which earnest money shall stand forfeited. If the above conditions are compared with rules 77 and 92 of Order XXI, then there will be found vast difference as under rule 77 of Order XXI, payment is to be made at the time of completion of auction and in case of non-payment, the property is to be put to auction forthwith and the ownership of the auction-purchaser under the said rule is subject to payment of full auction price. Rule 92 is to be acted upon when there are certain objections to the sale under rules 89, 90 and 91 from the person claiming title before the sale or share in retable distribution is claimed by objector or there is no saleable interest with the judgment-debtors, The Court after hearing the objections under these three rules can pass an order towards setting aside or confirmation of the sale. From the above, it is apparent that the sale directed by the Court through tender/sale notice was different in kind, as sale was never completed before Official Assignee/ Commissioner, nor he has power to confirm as that only rested with the Court and that the balance of the purchase price was to, be paid within 15 days from the date of confirmation by the Court and not before the auction after completion of bids. The factual position, that balance was not paid before the Official Assignee/Commissioner or that the bidder did not participate on the terms and condition of tender/sale notice is not being denied by the learned counsel for the appellant. In the instant matter, the sale of notice has no match with rule Z7 of Order XXI, hence no reference can be made to the said rules. It has also come on record that appellant itself participated in the improvement of bid and that bidders .were also required through negotiation to enhance the bids and after all that process, Messrs Sapna Traders and Builders .turned out to be a successful bidder. The contention of the learned counsel for the appellant in the circumstances has no force as the sale before the Official Assigned Commissioner was never completed and rule 77 has even no remote relevancy to the auction conducted in the case. As a matter of fact when in Court proceedings, through Court, any sale is conducted then the Court, acting as custodian of the goods/property, has to sec and to watch carefully the interest of the person whose goods/property has been sold in any manner and it becomes a duty of the Court that maximum price of the goods/property be obtained, so the losses of the affected party, who normally is judgment-debtor, is to be minimized. In such a way the Court can adjust its proceeding to get maximum price for the goods/property. Even otherwise, in such type of cases, there is no restriction under the law upon the Court to refrain it from doing such exercise which eau be peculiar in nature, keeping in view the factual position in each and every case. We have also observed that learned Single Judge has rightly placed reliance upon 1981 SCMR 108 in the case of Mst. Asma Zafarul Hassan v. UBL and that the authorities relied upon by the learned counsel for the appellant have no relevance in the matter, hence appeal has no force. By ashore order it was dismissed in limine on 8-6-2007 along with the listed applications and above are the reasons. M,B.A./N-26/K Appeal dismissed.