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TMI Blog2021 (2) TMI 1368X X X X Extracts X X X X X X X X Extracts X X X X ..... inted out that it is open to the Applicant to constitute Board as per the Companies Act, 2013 and individuals concerned to act accordingly, since the Applicant has purchased the Unit as a going concern - However, in relation to exemption of Stamp Duty and Tax payment and other concessions, it has been observed that it is for the Authorities accordingly to consider the requests of the Applicant. Similarly, if any concessions or any exemptions are being sought by the Applicant herein, it is for the Authorities to consider the same. Application disposed off. - R. VARADHARAJAN, MEMBER (J) AND ANIL KUMAR B., MEMBER (T) For the Appellant : Srinath Sridevan, Ravichandran T., Advocates and For the Respondent : Radhakrishnan Dharmarajan, Liquidator ORDER R. VARADHARAJAN, MEMBER (J) 1. The Applicant herein is a successful bidder by the purchase of the Company in Liquidation viz., M/s. Winwind Power Energy Private Ltd., on a going Concern basis. From the Application as well as the response filed by the Liquidator in relation to the Company in liquidation, the following facts emerge viz., in relation to CIRP initiation and Liquidation thereafter of the Company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transfer of licenses, to the extent permissible under the Applicable Laws. Post the transfer, the Successful Bidder shall be entitled to transfer/apply for transfer of all the licenses, approvals, concessions, benefits as may be applicable to the unit. Any liabilities, current or long term, contingent or not whether due or otherwise pertaining to the operations of the Company post liquidation commencement date and all current employees related liabilities including Provident Fund, ESI and other retirement benefits shall be to the account of the Successful Bidder including any liabilities accruing post auction date. 8. It is also seen as the key highlights of the asset sale process that the sale of assets as a going Concern was to be on as is where is and whatever there is basis . The EMD which was required to be deposited was a sum of Rs. 6.3 Crore and the reserve price, as already stated was to the extent of Rs. 63 Crore. 9. In relation to completion of sale, the Sale Process Memorandum under Clause 16 requires that the successful bidder has to provide the balance sale consideration within 30 days of the date of issuance of the LoI (Letter of Intent) in a single transit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vals issued to the Company; iii. All other Company's documents, records and files owned or used by the Company; iv. All of the Company's rights and interests pertaining to any counter claims, set-offs, third party indemnities or defenses that the Company may have, shall continue to vest in the Company, post acquisition by Purchaser of the sale assets. 5. Following the sale and transfer of the sale assets to the Purchaser as above, the Liquidator shall take steps to induct into the Board of Directors of the Company Prakash Kumar Saraogi (DIN 00496255) and Gautam Saraogi (DIN 03209296), the nominee Directors of the Purchaser effective the date hereof. All Directors nominated by erstwhile promoters/stakeholders of the Company shall have ceased to hold office. Purchaser shall have fullest liberty to make necessary statutory filings with the Registrar of Companies within 30 days from the date of this Deed. 8. All liabilities appearing in the balance sheet of the Company which inter-alia includes, trade payables, current liabilities or short-term provisions having thus been extinguished/annulled and all assets, inter-alia including tangible assets, trade receivables, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... econstituted by inducting the following nominees of the Applicant:- a) Prakash Kumar Sarogi (DIN 00496255) and (b) Gautam Saraogi (DIN 03209296), effective the date of the sale deed executed in favour of the Applicant. 5.6 Declare that all directors nominated by erstwhile promoters/stakeholders of the Corporate Debtor shall have ceased to hold office. 5.7 Direct the Respondent to co-operate with the Applicant for filing of all requisite forms under the Companies Act, 2013 to give effect to the foregoing, including to revive the status of the Corporate Debtor (without any additional fines or penalty for past non-compliances) in the records of the Registrar of Companies as active , so that consequent steps be taken thereon by Registrar of Companies. 5.8 To pass such further order or other orders that the Hon'ble Tribunal may deem fit in the facts and circumstances of the case. 16. Going through the reliefs portion, it is seen that the Applicant is seeking for reliefs before this Tribunal in respect of which the terms and conditions of the Deed of Sale have already taken care to enable to appreciate as to the relevant clauses have also been reproduced in Paragraph No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o account for the payment made to be settled and that is required to be dealt by the Liquidator in terms of Section 53 of the provisions of IBC, 2016. 22. In relation to paragraph No. 5.5, it is again evident that already the Deed of Sale specifically provides that the persons named therein shall become part of the Board of the Company following the sale and transfer of the sale of assets to the Applicant by the Liquidator. In the circumstances, the Liquidator is required to conform to the terms and conditions of the sale in letter as well as in spirit and no separate directions from this Tribunal are required for the same. 23. In relation to Paragraph No. 5.6, upon initiation of the CIRP in relation to the Corporate Debtor, the powers of the Board of Directors stood suspended and similarly upon liquidation of the said Corporate Debtor under Section 34(2) of IBC, 2016 where under all the powers of the Board of Directors shall cease to have effect and be vested with the Liquidator. In the circumstances, we do not find any separate direction is required to be given in this regard, as by operation of law, the Directors shall cease to hold any office in relation to the Corporate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d conditions of the Deed of Sale being the bargain between the parties and also taking into consideration the above position of law that the Corporate Debtor continues in existence and not dissolved. 29. The Applicant, during the course of submissions also pointed to an order passed by the NCLT, Hyderabad in IA No. 1038/2019 in CP (IB) No. 343/7/HDB/2018 in the matter of Bank of India -Vs- Southern Online Bio-Technologies Ltd., to buttress and canvass for the reliefs prayed herein. The decision taken in the said order in relation to the allotment of shares at Paragraph No. 20 of the said order abundantly clarifies that the Applicant therein is the purchaser of the Corporate Debtor as a going concern, the Applicant is entitled to make allotment of shares as envisaged as per the provisions of the Companies Act, 2013 by following the prescribed procedure thereunder. 30. Further in relation to the constitution of the Board of Directors in Paragraph No. 21, it has been pointed out that it is open to the Applicant to constitute Board as per the Companies Act, 2013 and individuals concerned to act accordingly, since the Applicant has purchased the Unit as a going concern. 31. How ..... 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