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TMI Blog2021 (4) TMI 993X X X X Extracts X X X X X X X X Extracts X X X X ..... basis that the scrap in question was found on the premises of the Corporate Debtor and there is no dispute to this. The documents in the form of the alleged rental agreement and the subsequent addendum do not really establish anything. No rentals are envisaged to be paid under these documents. What is actually envisaged is payment of miscellaneous expenditure in regard to this scrap. From this it cannot be established that the goods in question belongs to Rishabraj Logistics Limited. Therefore, at this point of time we refrain from commenting on the ownership aspect. The successful auction purchaser i.e. Rekha Halder, Proprietor of Sayan Enterprises does not really have the right to take away the aluminium scrap lying inside the various shops, which did not ever form part of the auction process - Application dismissed. - I.A. Nos. 1060/KB/2020, 1081/KB/2020 in CP(IB) No. 1042/KB/2018 - - - Dated:- 5-4-2021 - Rajasekhar V.K., Member (J) And Harish Chander Suri, Member (T) For the Appellant : Joy Saha, Sr. Advocate, Zeeshan Haque and Aishwarya Kumar Awasthi, Advocates For the Respondents : Jishnu Chowdhury, Shaunak Mitra, Advocates, Rahul Parasrampuria, PCS, Rachna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e scrap immediately failing which Liquidator may be allowed to Auction the said goods; a) To pass necessary order issuing directions upon respondent No. 2 to abstain from doing illegal unauthorized acts; b) Direct respondent No. 2 to place the aluminium scrap back in the godown from where it was lifted which is not the part of Block 2. c) Direct the respondent No. 2 to vacate the factory premises immediately; d) To pass necessary order issuing direction upon both the respondents to render necessary assistance and support in conduct of the Process. e) Direction to the local police administration to provide necessary assistance protection; f) Exemplary cost to be imposed to on both the respondents. 3. I.A. No. 1081/KB/2020 was first taken up for hearing on 5th November, 2020. On that day this Adjudicating Authority had directed that Rishabraj Logistics Limited be made a party to I.A. No. 1081/KB/2020. Accordingly the Liquidator who preferred I.A. No. 1060/KB/2020 to implead Rishabraj Logistics Limited as the second respondent in I.A. No. 1081/KB/2020, which was ordered on 04.12.2020. 4. Mr. Joy Saha, Ld. Sr. Counsel appearing in I.A. No. 1081/K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty appointed Mr. Abhishek Sikdar, Advocate to act as an Independent Observer to oversee the whole process of removal of the scrap that stand loaded on the truck in the presence of the Liquidator, the representative of the applicant in I.A. No. 1081/KB/2020 and the representative of Rishabraj Logistics Limited to claim ownership of the said scrap. The unloading of the said scrap was to take place on 07.12.2020 at 11.30 a.m. Thereafter the matter was posted for further consideration on 19th January, 2021. On that day the report of the Special Officer was taken on record and a direction was given to circulate copies of the report upon the parties. The matter was posted to 23.02.2021. 10. On 23.02.2021 when the matter was taken up for hearing, Mr. Joy Saha, Ld. Sr. Counsel referred to page 65 of the I.A. 1060/KB/2020 which is a letter written on the letterhead of Manasi Oils Grains Pvt. Ltd. and Rajendra Raju Mansinghka. Vide this letter Mr. Rajendra Raju Mansinghka had forwarded to the Liquidator a copy of the addendum to an agreement dated 10.12.2015 in respect of rental for aluminium scrap as received from tenants. The addendum is dated 07.08.2019. It is stated therein th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ddin on behalf of Rishabraj Logistics Limited in I.A. No. 1081/KB/2020 in which one of the purported imported documents has been relied on. There is nothing to indicate whether there is any kind of distinctive marking on the scrap which would identify that this scrap was the one that was actually imported by Rishabraj Logistics Limited in terms of the invoices placed on record. 14. Mr. Joy Saha also submitted that the Liquidator has claimed that the goods in question do not belong to the successful auction purchaser because the goods were never included in the tender document, the valuation report or the asset memorandum. Mr. Joy Saha wonder how the Liquidator could rely on the valuation report or the asset memorandum when they have not been placed on record. The sale document do not disclose the existence of the so called tenancy under which Rishabraj Logistics Limited got to store the aluminium scrap on the premises of the Corporate Debtor. If the agreements are the basis of the determination by the Liquidator that the goods belongs to Rishabraj Logistics Limited, then there is every right to challenge the same. Could the Liquidator neither refuse to keep this goods when the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r was only the generic scrap. There is no right on the part of Rishabraj Logistics to take away the scrap. Mr. Chowdhury insisted on grant of prayer (b), (d), (e) and (g). Argument of Mr. Shovan Ghosh, Ld. Counsel for Rishabraj Logistics Limited: 18. Mr. Shovan Ghosh, Ld. Counsel appearing on behalf of Rishabraj logistics Limited contended that the scrap actually belongs to it. He took us through the contents of Supplementary Affidavit filed on 19.01.2021 at page 23. I.A. No. 1081/KB/2020, wherein in a letter dated 05.03.2020, reference has been made to the Aluminium Scrap lying in the packing godown ground floor, you please handover to me the key of packing ground at the time of lifting Aluminium Scraps as and when required . The Liquidator has, while acknowledging the said letter, remarked, content not in our knowledge not verified. 19. Mr. Shaunak Mitra, Ld. Counsel also appearing for the Liquidator stated at this stage that the factory of the Corporate Debtor was shut in 2008 and that the Balance Sheet of the Corporate Debtor did not include the aluminium scrap in question. 20. We have heard the contentions of the Ld. Sr. Counsel Mr. Joy Saha appearing for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 16.01.2020 once again refers to the miscellaneous scrap materials lying in the yard outside different shops only. The clarification issued is of no real consequence because such a statement was already available at page 18 of the tender document. Therefore, it cannot be said that the goalposts were changed after receipt of the EMD and there is no substance to this allegation on the part of the applicant in I.A. No. 1081/KB/2020. From the materials available on record, the ownership of the aluminium scrap in question cannot be conclusively established one way or the other. Therefore, neither the successful auction purchaser nor the Rishabraj Logistics Limited can actually be said to be entitled to take away the aluminium scrap in question. 24. In the absence of any documents to conclusively establish the ownership of the aluminium scrap, the Liquidator is entitled to presume that the same belongs to the corporate debtor until proved otherwise, if nothing else merely on the basis that the scrap in question was found on the premises of the Corporate Debtor and there is no dispute to this. The documents in the form of the alleged rental agreement and the subsequent addendum do not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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