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TMI Blog2022 (10) TMI 743X X X X Extracts X X X X X X X X Extracts X X X X ..... eceived as towards 90% of the bid, the Appellant shall be entitled to be refunded only lesser amount and not the entire balance amount. The Appeal having been entertained by this Tribunal, which is being decided by this order, the ends of justice be served in disposing of the Appeal by directing the Appellant Singhi Infrapower to deposit the balance amount within one month from the date of this order failing which the Liquidator shall proceed with the fresh auction of the land and building forfeiting 10% of bid amount already deposited - appeal disposed off. - Company Appeal (AT) (Insolvency) No. 318-319 of 2022 Company Appeal (AT) (Insolvency) No. 728 of 2022 - - - Dated:- 18-10-2022 - [ Justice Ashok Bhushan ] Chairperson And [ Barun Mitra ] Member ( Technical ) For the Appellant : Mr. Rahul Kapoor, Mr. Akhilesh Kalra, Advocates For the Respondents : Mr. Aditya Gauri, Mr. Amar Vivek, Mr. Dhananjay Sood, Advocates for R-1. Mr. Abhijeet Sinha, Ms. Mithu Jain, Mr. Lakshay Sharma, Ms. Shradha Narayan, Advocates for Intervenor For the Appellant : Mr. Abhishek Anand, Mr. Rajeev Agarwal, Ms. Stuti Vatsa, Advocates For the Respondents : Mr. Aditya Gauri, Mr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertificate contemplate lifting up of the material on or before 21.03.2021. Along with Sale Certificate letter of possession dated 02.02.2021 was also issued to purchaser M/s Laxman Enterprises through proprietor. On 05.02.2021, an email was sent on behalf of the Liquidator to the purchaser to start the process of lifting of plant and machinery from the site. Email was replied on behalf of the purchaser. On 12.02.2021 the possession was given to the purchaser, however, the Sale Certificate and Letter of Possession was not signed by the purchaser. An email dated 22.02.2021 was sent to the purchaser again requesting eviction on urgent basis and to provide the signed copy of the Sale Certificate and Letter of Possession. On 19.02.2021 a letter was sent on behalf of the purchaser signed by the Appellant Chhota pointing out that certain parts and machines are missing. Appellant Chhota also filed complaint before Police Station, Laksar, Haridwar dated 25.02.2021. 6. On 07.04.2021, the Adjudicating Authority directed the Appellant to approach the Liquidator within two days in respect of issue about lifting of plant of machinery and resolve the issue before 18.04.2021 and file the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d counsel for the Appellant appearing in Company Appeal (AT) (Ins.) Nos. 318-319 of 2022, Shri Abhishek Anand, learned counsel for the Appellant in Company Appeal (AT) (Ins.) No.728 of 2022 and learned counsel for the Liquidator. We have also heard Shri Abhijeet Sinha, learned counsel appearing for Sunhill Proptech Private Limited who had filed application for impleadment in both the Appeals. 10. Shri Kalra, learned counsel appearing for the Appellant Chhota submits that Appellant has deposited the entire amount by 30.01.2021 i.e. within the time allowed by the Adjudicating Authority and when after issuance of Sale Certificate the Appellant went to take physical possession it was found that certain parts of plant and machinery were missing with regard to which, immediately a letter dated 19.02.2021 was sent to the Liquidator. But grievances of the Appellant were not redressed. After order dated 11.08.2021 was passed, an I.A. No. 3797 of 2021 was filed by the Appellant which came to be rejected on 28.01.2022. It is submitted that Appellant has filed a Police complaint regarding the theft of machinery but his grievances were also not redressed by the Police Authority. 11. L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7.5 crores. 16. We have heard learned counsel for all the parties and perused the records. 17. We may first notice the submissions and issues raised in Company Appeal (AT) (Ins.) No. 318-319 of 2022. In the fifth e-auction held on 12.10.2020, the Appellant Chhota the proprietor of Laxman Enterprises was the highest bidder. In addition to EMD amount of Rs.20 Lakh Appellant also deposited Rs.21 Lakhs i.e. balance of consideration of EMD (10% of the bid amount). For payment of balance amount, Adjudicating Authority directed the Appellant to deposit the entire amount by 01.02.2021 and by 31.01.2021 entire amount was deposited by the Appellant. The issue which was raised by the Appellant after issuance of the Sale Certificate on 02.02.2021 is regarding missing of some part of plant and machinery by letter dated 19.02.2021. One of the condition of eauction in Clause H was as follows:- H. Due Diligence . The properties and assets of the Company are proposed to be sold on As is where is basis , As is what is basis , Whatever there is basis and No recourse basis and the proposed sale of assets of the Company does not entail transfer of any title, except the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... building i.e. Singhi Infrapower , Appellant in Company Appeal (AT) (Ins.) No. 728 of 2022. The Adjudicating Authority in the application filed by the Liquidator has passed following order on 11.08.2021:- ORDER IA No. 1351/2021 The liquidator is directed to take out notice and serve the auction purchaser of the plant and machinery, giving him a chance to take the machinery within a weeks time, otherwise the amount paid by the auction purchaser will be forfeited and fresh auction will be conducted to sell the plant and machinery. Further the auction purchaser is directed to appear before this Tribunal either in person or though advocate on the next date of hearing. List the mater for further consideration on 21.09.2021. 20. The Appellant had filed an application for recall of order dated 11.08.2021 which was rightly rejected on 28.01.2022. Further, application filed by the Appellant being I.A. No. 754 of 2022 was rejected by order dated 16.02.2022 refusing to review the order dated 28.01.2022 as was prayed by the Appellant. The Adjudicating Authority has rightly taken the view that the Adjudicating Authority has no power to review its own order dated 28 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We are of the view that the ends of justice be served in directing forfeiting of 10% of the bid amount deposited by the Appellant Chhota i.e an amount of Rs.41 Lakhs. The balance amount out of the total amount deposited by the Appellant needs to be refunded subject to the condition that in the fresh auction to be conducted a higher amount is received towards 90% of the bid which may be refunded to the Appellant. In case, in the fresh auction any lesser amount is received as towards 90% of the bid, the Appellant shall be entitled to be refunded only lesser amount and not the entire balance amount. 24. Coming to the Company Appeal (AT) (Ins.) No. 728 of 2022, the Adjudicating Authority has directed by the impugned order dated 07.06.2022 to the Appellant Singhi Infrapower to deposit the balance amount within 30 days. The Appeal having been entertained by this Tribunal, which is being decided by this order, we are of the view that ends of justice be served in disposing of the Appeal by directing the Appellant Singhi Infrapower to deposit the balance amount within one month from the date of this order failing which the Liquidator shall proceed with the fresh auction of the land ..... X X X X Extracts X X X X X X X X Extracts X X X X
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