Must financial capacity to pay the balance sale consideration in an auction be shown through material produced, not mere assertions or repeated assurances?

Paragraph 13The NCLT also specifically noticed and extracted the condition in the auction notice, which threatened forfeiture of the EMD and any other amounts deposited, if the successful bidder fails to pay the balance sale consideration as per the terms of the sale. However, the NCLT relied on the decisions of this Court and found the Triple Test to be satisfied in the case of the appellant. The Triple Test propounded is with respect to the bidder having:

Paragraph 16Looking at the specific clause threatening forfeiture on failure of payment of balance sale consideration, on cancellation, forfeiture is a necessary consequence and there is no application of the Triple Test, on facts herein, to absolve the appellant from such forfeiture. The mere failure to make the balance sale consideration was to rig the auction proceedings, in which circumstance, admittedly, there was a fresh auction proposed and there was a higher value received on such auction. The higher value received is only because of the inherent value of the property and is not in set off, of the expenses incurred. The proof of financial capacity, is not in the repeated communications agreeing to pay the money, but should be insofar as materials produced substantiating the capacity and not mere assertions made. In fact, the assertion made, specifically by an e-mail communication, also emphasized by the NCLAT, was long prior to the expiry of the 90 days, at which point, the appellant was aware of the cloud over the sale deeds. There was no query made as to the verification of sale deeds any time during the bid process which, in any event, was not possible at a later point of time, that too, just prior to the date of full deposit.