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TMI Blog2023 (9) TMI 1290X X X X Extracts X X X X X X X X Extracts X X X X ..... en provided by the Appellant on its own in the EOI overlooking the terms and conditions as envisage in Schedule 1. The action of the Appellant is totally unsustainable, therefore, there are no error in the order under challenge in which all the factors of this case have been thoroughly appreciated. In the end, Counsel for the Appellant requested that the component of interest which has ordered to be paid with EMD which has been forfeited would cause extra burden on the Appellant but at the same time, it is also submitted that the amount of EMD is lying deposited in Bank on which the interest is accruing. In such circumstances, there are no merit in this argument as well. There are no merit in the appeal and the same is hereby dismissed. - [ Justice Rakesh Kumar Jain ] Member ( Judicial ) And [ Mr. Naresh Salecha ] Member ( Technical ) For Appellant : Mr. Abhijeet Sinha, Mr. Gautham Shivshankar, Mr. S. Sinha, Advocates For Respondents : Mr. Sumant Batra, Ms. Aishwarya, Advocates JUDGMENT Per : Justice Rakesh Kumar Jain : The Appellant is the Liquidator of the Corporate Debtor (Nicco Corporation Limited) is aggrieved against the order dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defaulting bidder shall be forfeited and the assets shall forthwith be sold again and such defaulting bidder shall forfeit all claims to the Sale Asset or to any part of the amount for which it may be subsequently sold. 4. The E-auction was held on 30.07.2020 in which the Respondent was declared as the highest bidder (H1). The Appellant after confirming the applicant as H1, vide mail dated 30.07.2020, asked to remit the amount of sale consideration as follows:- (a) 25% of the sale consideration within 5 days of the demand, that is by 05.08.2020 (b) 75% of the sale consideration, plus applicable taxes within 15 days of the demand i.e. by 15.08.2020. 5. The Respondent was the highest bidder who gave the bid of Rs. 24.73 Crores deposited 25% of sale consideration i.e. Rs. 6,18,25,000/- which is shown as under:- 6. The case set up by the Appellant is that the Respondent did not make the payment of the balance 75% of sale consideration till 15.08.2020 which was the date stipulated for full payment in the EOI. Accordingly, he sent a notice to the Respondent on 17.08.2020 asking for payment of the entire remaining amount on or before 13.09.2020 (being the 45th day from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld apply prospectively and shall not apply to the liquidation process which has been initiated prior to that date and in the present case the Liquidation process started on 17.10.2017. However, the Adjudicating Authority did not agree with the Appellant on this issue, firstly on the ground that there is no power vested with the board to issue circular under Section 196 of the IBC and secondly the Appellant was required to issue EOI in terms of the Regulations as its stood amended on 25.07.2019 providing 90 days for payment of balance sale consideration from the date of demand. 9. Counsel for the Appellant has vehemently argued that firstly, the Adjudicating Authority has no jurisdiction to declare the circular of the board as non-est. However, it is also submitted that the circular dated 26.08.2019 even otherwise has been withdrawn, therefore, nothing much depends upon it in the present case. It is rather submitted that the timeline fixed in the EOI became an invitation to the public and once the Respondent as a bidder accepted the same, entered into the bid, it becomes a party to that contract and cannot seek selective relaxation of timeline as the time for payment is essential ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Paper with regard to difficulties found by Liquidators when time is of mere 15 days. 13. Perusing the Liquidation Regulations and Clause 12 of Schedule I as was subsequently introduced on 25.07.2019, the substituted Regulation which has been brought by way of amendment does not show that the Regulation is to be applied only prospectively. It is open ended provision relating to procedural law which in no way states that it will not apply to pending liquidation processes on the date of substitution. In our view, the Circular dated 26.08.2019 could not interpret the Regulations in the manner it is done. Power of Board under Section 196(1) (p) or (t) to issue guidelines cannot be expanded to interpreting provisions made. That is job of Courts to interpret and apply law. Reading the Regulation as amended we find it must be held to be applicable to liquidation process which are pending, and the provision can be applied considering stage of the process, irrespective of the date whether the liquidation process started before 25.07.2019 or on or after 25.07.2019 when Clause 12 Schedule I of the Regulations was substituted. This is not to say that sales already cancelled before 25.07.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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