9911796707
TMI Blog2019 (6) TMI 1421X X X X Extracts X X X X X X X X Extracts X X X X ..... quidation Process) Regulations, 2016 whereby he had to prepare an asset memorandum and also to obtain valuation at least from two Valuers and by using an average thereof he had to decide the reserve price. The Liquidator has filed the 5th Progress Report which includes the asset memorandum and the Valuation Reports and the reserve price has also been correctly ascertained. We do not notice any irregularity in the sale process. If at all the applicants wanted to participate in the sale process or had any willingness or capability to purchase or had been claiming any right as a tenant or any pre-emptory right in relation thereto under any law they could have approached the appropriate forum of Court immediately on the publication of first expression of interest. They are delayed again at this stage when the sale has already been finalized by the Liquidator as per the Rules and Regulations applicable thereto and particularly when this Tribunal does not find any infirmity therein - The whole process of sale adopted by the Liquidator is correctly followed and cannot be allowed to be undone. The applications of the applicants need no consideration and they do not have any locus standi. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted that agreement for sale was already executed and conveyance deed is to be executed within four months upon fulfilment of terms and conditions in the agreement by the buyer. Accordingly, the Liquidator is hereby directed not to proceed with the execution of Conveyance Deed until the disposal of the application. In the meanwhile, Liquidator is directed to file reply affidavit in Misc. A. Nos. 585 & 586/KB/2019 within 7 days by serving copy of the reply affidavit to the respective applicants. Applicants are directed to file rejoinder, if any, within 7 days of receipt of the reply affidavit by serving copy to the Liquidator. The above said direction is not a bar in collecting the rent for the tenants who has challenged the sale of the building. The Liquidator is directed to collect the rent, if any, payable by the applicants in Misc. A. Nos. 585 & 586/KB/2019 and kept it in the separate account to be maintained by the Liquidator. Applicants are directed to remit the rent to the account to be maintained by the Liquidator without any failure on their part. Registry is directed to number any pending applications if any filed in this C.P. and list it along with the C.P. on 18.06 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bjection of the Applicant in this application is the manner in which a portion of the 2nd Floor of Nicco House has been sold to another co-tenant and Advocate, without any public notice or prior information or without giving similar offer to the applicant or other tenant on the same floor. 5. It is submitted that the agreement to sale has been executed between the Respondent i.e. the Liquidator of the Corporate Debtor and M/S. Narnolia Financial Advisors Limited. 6. It is further submitted by the Applicant that it is not clarified as to how M/S. Narnolia Financial Advisors Limited had earlier taken part in the auction sale of the property and was the highest bidder with offer price of ₹ 37.50 crore along with another P.P. Suppliers & Agencies (P) Limited having its office in the same building and that the respondent has made private arrangement by executing the Agreement for sale for a lesser price of ₹ 28.25 crore. It is stated that M/S. Narnolia Financial Advisors Limited is trading in real estate i.e. acquire the property at throwaway price by negotiating with the vendor and sell the same in market at the true market price. 7. It is further submitted by the Appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as filed this application. This applicant has filed this application as Operational Creditor for settling their claim which is pending. The Applicant No. 2 Tapas Dutta is the Director of Applicant No. 1 and is a practicing Advocate having a chamber in the premises at Nicco House. 14.1t is submitted in this application that the entire G+7 storied building is an unauthorized construction and he made a complaint vide letter dated 30th November, 2015 to the Kolkata Municipal Corporation for initiating demolition proceedings in respect of the said building. The applicant further states that on 9th October, 2018, the KMC tendered building plans bearing No. 69 issued on 19th September, 1962 in respect of the said premises before the Hon'ble High Court at Kolkata, pursuant to order dated 12th August, 2013 in W.P. No. 23601 (W) of 2007 and an order was passed on 9th October, 2018. 15. It is further stated by the applicant herein that they came to know from paper publication dated 8th October, 2018 that the Liquidator intended to sell the entire building of the said premises on as is and where it is basis, and that the applicant requested the Liquidator not to proceed with the sale of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or further step or acting on the basis of the agreement for sale dated 15th March, 2019 or any other agreement or conveyance that may have been entered into in respect of the 2 nd floor of the said building, including the letter dated 10.04.2019 and 22.04.2019 issued by the Liquidator. The applicant further prays for restraining the Liquidator from holding himself out as the Liquidator or continuing to act as the Liquidator or intermeddling with the assets and properties of the corporate debtor in any manner whatsoever. 21. The Applicant further prays status-quo order in the meanwhile. 22. However, in M.A. (IB) No. 586/KB/2019 the respondent i.e. the Liquidator in the Corporate Debtor filed reply and submitted that the application is devoid of any merit, not maintainable and is liable to be dismissed in limine, because the applicant is neither a stake holder in the Liquidation process nor in any manner concerned with the Liquidation proceedings and has no status to put a question or raise any issues relating to the liquidation proceedings. The applicant has no right to seek any intervention. 23. It is submitted that the sale of Nicco House has not in any manner interfered with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed parties and buyers, or the creditors and the buyer, and shall submit a report to the Adjudicating Authority in this regard, seeking appropriate orders against the colluding parties. Regulation 34 provides that - (1) On framing the liquidation estate under section 36, the liquidator shall prepare an asset memorandum in accordance with this Regulation within seventy-five days from the liquidation commencement date. (2) The asset memorandum shall provide the following details in respect of the assets which are intended to be realized by way of sale - (a) Value of the asset, valued in accordance with Regulation 35; (b) Value of the assets or business(s) under clauses (b) to (f) of regulation 32, valued in accordance with regulation 35, if intended to be sold under those clauses; (c) Intended manner of sale in accordance with Regulation 32, and reasons for the same; (d) The intended mode of sale and reasons for the same in accordance with Regulation 33; (e) Expected amount of realization from sale; and (f) Any other information that may be relevant for the sale of the asset. (3) The asset memorandum shall provide the following details in respect of each of the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Liquidator has complied with all the requirements of the provisions of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016 whereby he had to prepare an asset memorandum and also to obtain valuation at least from two Valuers and by using an average thereof he had to decide the reserve price. The Liquidator has filed the 5th Progress Report which includes the asset memorandum and the Valuation Reports and the reserve price has also been correctly ascertained. 31.We do not notice any irregularity in the sale process. If at all the applicants wanted to participate in the sale process or had any willingness or capability to purchase or had been claiming any right as a tenant or any pre-emptory right in relation thereto under any law they could have approached the appropriate forum of Court immediately on the publication of first expression of interest. They are delayed again at this stage when the sale has already been finalized by the Liquidator as per the Rules and Regulations applicable thereto and particularly when this Tribunal does not find any infirmity therein. The whole process of sale adopted by the Liquidator is correctly followed and can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by him as per Regulation 35 of IBBI (Liquidation Process) Regulation 2016. As per Regulation 35 (1) of IBBI (Liquidation Process) Regulation 2016, the Liquidator shall appoint two registered valuers to evaluate the assets as required under Regulation 34. One Mr. Sudip Kumar Sarkar, Chartered Engineer by Profession who is a Government and IBBI Registered Valuer, and another firm Elmahast India Engineering and Management Consultant, Central Government approved valuer and Surveyors, are the two valuers who filed the valuation reports. 5. Both of them have considered the assets of the corporate debtor under valuation and the Valuer Mr. Sudip Kumar Sarkar assessed the value of the assets in question by determining the age of the building at 31st years. Admittedly, the building is aged more than 100 years. According to Mr. Sudip Kumar Sarkar the building is situated in the city of Kolkata and located at prime business area. Considering the lack of modern amenities the expected market value he arrived at by considering the market value of the building in the prevailing locality as per the government norms published by the Govt. of West Bengal ( referred to www.wbregistration.gov.in) i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reduced the reserve price beyond permissible limit and therefore the sale proceeding is irregular and in violation of the Regulations. To substantiate the said contention also here in this case, no data or evidence has been made available on the side of the applicants. 10. The Ld. Liquidator has filed the progress reports as per the provisions of the Code and submitted a list of dates as to the process flow for sale of the disputed assets the Nicco House. It has come out in evidence that he has issued public announcements as per the Regulation 12 in various leading English and vernacular language news papers. According to him, he issued altogether 7 publications in multiple newspapers like, Economic Times, Times of India, Business Standard in English and in Bengali Aajkal as well as in Odisha Bhaskar Newspapers, calling for EOI. Copies of publications were produced before us to strengthen the said submissions too. 11.The first valuation for slum sale of NICCO Corporation seems to have been obtained by the Liquidator in the month of December 2017. The list of dates furnished by the Liquidator reveals that he has obtained revised valuation report on failure of getting bidders for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion fails, he can reduce the reserve price up to 75% of such value to conduct the subsequent auction. So reduction of reserve price is with in his power and he needs not to get any prior permission from the Adjudicating Authority for reduction. So the points urged in regards to reduction of reserve price is also found devoid of any merits. 15.At this juncture the Ld. Sr. Counsel for the liquidator attempted to brought our attention to a letter addressed to the Liquidator by the applicant in IA No.604/2019 dated 5/11/2018. it is a letter requesting the liquidator not to proceed with the sale of 4th 5th 6th and 7th floor alleging the said floors were constructed unauthorisedly without any building plan. The applicant is admittedly a tenant occupying a portion of tenanted premises of the NICCO house in the 2nd floor. In the said letter he did not raise any challenge regarding the publication calling for expression of interest from bidders. Moreover, he did not choose to participate in the auction. He also failed to substantiate his contention as to what manner sale of the building allegedly constructed without proper sanctioned plan, has prejudiced the rights of the applicant. The s ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
