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TMI Blog2023 (3) TMI 804X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.2023 in IA(IBC)/1018(CHE)/2022 in CP/759/IB/CB/2018, passed by the 'Adjudicating Authority' ('National Company Law Tribunal', Division Bench - II, Chennai). Petitioner / Appellant's Submissions: 2. It is represented on behalf of the Petitioner / Appellant is that, the 'Petitioner / Appellant', is an 'Aggrieved Person', as per Section 61(1) of the I & B Code, 2016, and in fact, the 'Petitioner / Appellant', gave a 'Proposal' dated 08.11.2021, for the purchase of the 'Corporate Debtor' / 'Liquidation Company', as a 'Going Concern', for a sum of Rs.80/- Crores to the '1st Respondent.'. 3. The Learned Counsel for the Petitioner / Appellant submits that through an 'Order' in MA/122/2021 in CP/759/IB/2018 dated 11.03.2022, the 'Adjudicating Authority' ('Tribunal'), had directed the '1st Respondent / Liquidator', to consider the 'Proposal' of the 'Petitioner / Appellant', for 'Swiss Challenge' Method. 4. It is represented on behalf of the Petitioner / Appellant that there was an 'wanton omission, breach and collusion', in between the 'Parties', in Compliance of the 'Order', passed in MA/122/2021 in CP/759/IB/2018 dated 11.03.2022, which was not 'appraised', and taken into 'account', ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ), seeking for the 'Sale of Corporate Debtor', as a 'Going Concern', by way of a 'Private Sale', with other 'Reliefs'. 10. It is projected on the side of the 1st Respondent / Liquidator that the only 'Parties', to the said 'Application / Petitioner', where the 'Corporate Debtor', represented by its 'Liquidator' ('1st Respondent' herein) and the 'Buyer', being the 'Sole Proforma Party' / '2nd Respondent' (M/s. G C Logistics India Private Limited). 11. According to the 1st Respondent / Liquidator, the Petitioner had filed an IA No.1343 of 2022, before the 'Adjudicating Authority' ('Tribunal'), which was dismissed on 06.12.2022. A 'Restoration Application No. 18 of 2022', was preferred by the 'Petitioner', for restoring IA No. 1343 of 2022, which was dismissed on 24.01.2023, wherein the 'Counsel for the Petitioner', had submitted before the 'Adjudicating Authority', that the subject matter of 'Restoration Application', became an 'Infructuous' one and ultimately, the said 'Application' was 'dismissed'. 12. As a matter of fact, the Petitioner had not taken any steps to implead or object to the 'Sale' of the 'Corporate Debtor', and since the 'Petitioner' was not a 'Party' to the 'Orig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fits, received from the 2nd Respondent, was distributed, to the 'Stakeholders', as per Section 53 of the Code. In reality, the 'Stakeholders' to whom the 'monies', were distributed, were not arrayed as 'Parties', to the IA No. 124 of 2023 or in main Comp. App (AT) (CH) (INS.) No. 33 of 2023. Stance of the 2nd Respondent / Successful Resolution Applicant: 18. According to the Learned Counsel for the 2nd Respondent, pursuant to the 'impugned order', the 2nd Respondent, had entered into and executed the 'Going Concern Purchase Agreement', for the said takeover dated 27.01.2023 and took over the 'operations' of the 'Corporate Debtor'. In fact, the 'Official' takeover of the 'Corporate Debtor', was on 30.01.2023. Also that, the 'Corporate Debtor's current 350 employees, were retained by the '2nd Respondent' for now, to continue running the operations of the 'Corporate Debtor', who would be put to extreme hardship, if the 'Sale' of the 'Corporate Debtor', is 'reversed'. 19. The plea of the 2nd Respondent is that, towards the 'Acquisition of the Corporate Debtor', due consideration was paid by the 2nd Respondent and in fact, a sum of Rs.4,46,40,000/-, was paid on 19.05.2022 and the rem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d filed an IA(IBC)/1018/CHE/2022 in CP/759/IB/CB/2018, before the 'Adjudicating Authority' / 'Tribunal' (under Section 60(5) of the I & B Code, 2016, read with Regulations 32A(e), praying for the 'Sale' of the 'Corporate Debtor', as a 'Going Concern', by means of a 'Private Sale', coupled with other 'Prayers'. In fact, the 'Buyer' ('2nd Respondent' / 'G C Logistics India Private Limited'), is the only 'Party', shown in the said 'Application'. 23. The ground reality of the matter is, the 'Petitioner / Appellant', had not made any endeavour to furnish his objections or took steps to get himself added as one of the 'Parties', in IA/1018(CHE)/2022 in CP/759/IB/CB/2018, before the 'Adjudicating Authority' ('Tribunal'). 24. It transpires that the 'Adjudicating Authority' ('Tribunal'), had allowed the 'Swiss Challenge' bidding, through its 'Order' dated 11.03.2022, and further that, the Respondents had sent him the emails dated 16.03.2022, 23.03.2022, 26.03.2022 and 30.03.2022, apprising him of the 'Swiss Challenge Bidding', and called upon him to take part in the said 'Bidding', which was made mention of by the 'Adjudicating Authority' ('Tribunal'), vide Paragraph 8.2 of the 'Impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.2022. 28. In the 'Swiss Challenge Auction', which took place on 06.04.2022, in which, the '2nd Respondent', was named as a 'Successful Bidder', and it satisfied the payment of Rs.44,64,00,000/-. Further, the purchase of the 'Corporate Debtor', as a 'Going Concern', by the '2nd Respondent', was 'allowed', by the 'Adjudicating Authority', through its 'Order', passed in IA(IBC)/1018/CHE/2022 in main CP/759/IB/CB/2018. 29. It is not out of place for this 'Tribunal', to make a significant mention that this 'Tribunal' in the Judgment dated 21.10.2022 in Bipin Textile Processing Industries Private Limited v. Shiva Dutt Bannanjee & Ors. (vide IA No. 771 of 2022 in Comp. App (AT) (CH) (INS.) No. 341 of 2022), reported in India Kanoon, wherein at Paragraph 15, it is observed as under: 15. "At this juncture, this 'Tribunal' aptly points out that the 'object of seeking Leave', is to prevent an 'unreasonable plea' to be taken by a 'Stakeholder' / 'Litigant', who has no 'Tangible' / 'Substantial Defense', in regard to the implementation of the 'Resolution Plan'." 30. In so far as the present case is concerned, it is brought to the fore that the 'New Managem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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