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TMI Blog2022 (5) TMI 1121X X X X Extracts X X X X X X X X Extracts X X X X ..... 9/- is the Fixed Deposit and interest accrued therein as also the amount retained by the Respondent under the direction of this Tribunal - Application disposed off. - IA(IBC)/33(KOB)/2022 IN IBA/38/KOB/2019 - - - Dated:- 18-5-2022 - Hon ble Mr. Ashok Kumar Borah, Member (Judicial) And Hon ble Mr. Anil Kumar. B, Member (Technical) Mr. Vinod Balachandran, The liquidator of M/s. Albanna Engineering (India) Pvt. Ltd. Versus M/s. Bharat Petroleum Corporation Limited For the Applicant/Liquidator Shri. K. B. Arunkumar, Advocate. For the Respondent Shri. John Mathai, Shri. Kuryan Thomas, Shri. Paulose C. Abraham, Shri. Ramola Nayanpally, Shri. Pranoy Harilal, Advocates. ORDER Per: Ashok Kumar Borah, Member (J) This IA(IBC)/33/KOB/2022 has been filed under Section 60(5) and 53 read with Section 35(n) of IBC, 2016 by Mr. Vinod Balachandran, Liquidator of M/s. Albanna Engineering (India) Pvt. Ltd. against M/s. Bharat Petroleum Corporation Limited, Kochi Refinery seeking the following relief: - ➢ Directing the Respondent to transfer Rs. 25,13,38,078/- (Rupees Twenty-five crore thirteen lakhs thirty-eight thousand seventy-eight) deposited by way of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and forty-nine) are the only Liquidation Estate of the Corporate Debtor as per Section 36 of the Code. The Respondent had produced the Fixed Deposit receipts amounting to Rs. 25,13,38,078/- (Rupees Twenty-five crore thirteen lakhs thirty-eight thousand seventy-eight) before this Tribunal as per the direction on 30.06.2021 in MA/25/KOB/2020. Submission by the Respondent 7. The Respondent filed a reply statement stating that BPCL had awarded two separate contract works to M/s. Albanna Engineering LLC (Hereinafter referred to as AELLC ) and to undertake the contract work, AELLC had made use of the services of several sub-contractors/agencies including Corporate Debtor, which in turn had engaged the services of sub-contractors such as the Applicant in the Insolvency Petition CP(IB) 38/KOB/2019. It is further noticed that the amounts are payable to these sub-contractors/agencies by AELLC/ Corporate Debtor for the services rendered by them. Such sub-contractors/agencies had filed several suits against AELLC as well as Corporate Debtor for the realization of money in various courts. It is further stated that the Respondent do not have any contractual obligations with Corpora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fixed deposit in the name and style Bharat Petroleum Corporation Limited - Account Albanna Engineering . It is further stated that the original fixed deposit receipt was also handed over to this Tribunal by the Respondent on 12.08.2021 and the same is in the custody of the Registry of this Tribunal. 10. It is stated that the present application has been filed by the Liquidator of Corporate Debtor seeking directions to the Respondent to transfer Rs. 25,13,38,078/- (Rupees Twenty-five crore thirteen lakhs thirty-eight thousand seventy-eight) deposited by way of Fixed Deposit and interest accrued thereon till date and Rs. 5,46,08,871.37/- (Rupees Five crore forty-six lakh eight thousand eight hundred seventy-one and thirty-seven paise) retained by the Respondent under the direction of this Tribunal to the account of the Liquidator for utilizing the said amounts for the distribution of assets under Section 53 of the Code. It is further stated that despite the lapse of almost two years since the admission of CIRP, the garnishee/injunction orders passed by various Courts in pending suits/garnishee proceedings, restraining BPCL from parting with the amounts due to AELLC/Corporate Debt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is pending before the Hon'ble National Company Law Appellate Tribunal (Chennai Bench). 13. On 04.04.2022 the Applicant filed a rejoinder and stated that after the admission of the IBA/38/KOB/2019 moratorium was came into existence. The Respondent had filed a similar reply giving details of the Garnishees in the matter of MA/71/KOB/2020 on 12 July 2020 in this Tribunal. In that reply also the Respondent had mentioned that there is no privity of contract between Corporate Debtor and its 100% holding Company in Dubai and had admitted inadvertent error for having appeared in Garnishee proceedings. The contentions regarding the non-existence of a contract between Respondent and Corporate Debtor and pendency of suits garnishee proceedings were considered by this Tribunal in MA/71/KOB/2020 and MA/25/KOB/2020 and this Tribunal directed to invoke the personal guarantees furnished before the respondents by the holding company of the Corporate Debtor. The Tribunal had also relied on the back-to-back contract signed between the Corporate Debtor and 100% Holding Company of the Corporate Debtor which proves the existence of financial liability of the 100% holding company of the Corporate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r who seeks to realize its security interest under section 52 shall intimate the liquidator of the price at which he proposes to realize its secured asset. (2) The liquidator shall inform the secured creditor within twenty-one days of receipt of the intimation under sub-regulation (1) if a person is willing to buy the secured asset before the expiry of thirty days from the date of intimation under sub-regulation (1), at a price higher than the price intimated under sub-regulation (1). (3) Where the liquidator informs the secured creditor of a person willing to buy the secured asset under sub regulation (2), the secured creditor shall sell the asset to such person. (4) If the liquidator does not inform the secured creditor in accordance with sub-regulation (2), or the person does not buy the secured asset in accordance with sub-regulation (2), the secured creditor may realize the secured asset in the manner it deems fit, but at least at the price intimated under sub-regulation (1). (5) Where the secured asset is realized under sub-regulation (3), the secured creditor shall bear the cost of identification of the buyer under sub-regulation (2). (6) Where t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity interest maintained by an information utility; or (b) by such other means as may be specified by the Board. (4) A secured creditor may enforce, realise, settle, compromise or deal with the secured assets in accordance with such law as applicable to the security interest being realised and to the secured creditor and apply the proceeds to recover the debts due to it. (5) If in the course of realising a secured asset, any secured creditor faces resistance from the corporate debtor or any person connected therewith in taking possession of, selling or otherwise disposing off the security, the secured creditor may make an application to the Adjudicating Authority to facilitate the secured creditor to realise such security interest in accordance with law for the time being in force. (6) The Adjudicating Authority, on the receipt of an application from a secured creditor under sub-section (5) may pass such order as may be necessary to permit a secured creditor to realise security interest in accordance with law for the time being in force. (7) Where the enforcement of the security interest under sub-section (4) yields an amount by way of proceeds which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 53 of IBC, 2016 where is quoted hereunder: - Section 53: Distribution of assets. 53. (1) Notwithstanding anything to the contrary contained in any law enacted by the Parliament or any State Legislature for the time being in force, the proceeds from the sale of the liquidation assets shall be distributed in the following order of priority and within such period and in such manner as may be specified, namely: - (a) the insolvency resolution process costs and the liquidation costs paid in full; (b) the following debts which shall rank equally between and among the following: - (i) workmen s dues for the period of twenty-four months preceding the liquidation commencement date; and (ii) debts owed to a secured creditor in the event such secured creditor has relinquished security in the manner set out in section 52; (c) wages and any unpaid dues owed to employees other than workmen for the period of twelve months preceding the liquidation commencement date; (d) financial debts owed to unsecured creditors; (e) the following dues shall rank equally between and among the following: - (i) any amount due to the Central Government and ..... 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