9911796707
TMI Blog2025 (2) TMI 633X X X X Extracts X X X X X X X X Extracts X X X X ..... 024 filed by the Liquidator (hereinafter referred to as 'first appeal') and CA (AT) (Ins) No. 1518 of 2024 filed by the Successful Bidder (hereinafter referred to as 'second appeal') against the common order dated 04.07.2024 passed by the National Company Law Tribunal, Ahmedabad Bench by which an application bearing I.A No. 1479 of 2023 filed under Section 60(5) of the Insolvency and Bankruptcy Code, 2016 (in short 'Code) by the Successful Bidder for seeking certain reliefs and concessions, has been dismissed. 2. The Liquidator has filed the appeal because of the observations made against him in para 21 of the impugned order. 3. The brief facts of this case are that M/s Continental Piling and Excavation Pvt. Ltd. filed an application under Section 9 of the Code r/w Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 against M/s Anwesha Engineering & Projects Ltd. bearing CP (IB) No. 20/9/NCLT/AHM/2020 before the Tribunal which was admitted on 25.01.2021 and Mr. Sachin Bhattbhatt was appointed as the IRP, however, Anuj Bajpai was further appointed as the RP by the order dated 20.04.2021. 4. The erstwhile IRP constituted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as per the Regulations wherein the State Bank of India had 90.58 % share, Axis Bank had 4.21 % share and Aditya Birla Finance Ltd. had 5.21% share. 8. The Appellant/Liquidator circulated the draft e-auction process document vide mail and at the time when the liquidation order dated 13.01.2023 was passed, there were no pending contracts of the CD. 9. SBI holding 90.58% voting share addressed an email to the Appellant on 10.02.2023 indicating that in addition to the valuation of the financial assets of the CD, the Appellant should also conduct valuation of the land ＆ building and plant and machinery once again. The Appellant accordingly received as many as six valuation reports. The liquidator tried to hold the meeting between April, 2023 to July, 2023 but SBI was unavailable which was holding 95.58% voting share and thus no meeting was held in the absence of SBI because of lack of quorum. 10. As per the liquidator, the period of 90 days, for conducting sale of the CD, as a going concern as per the Regulations, concluded on 19.04.2023. One Raj Radhe Finance Ltd. sent an email on 05.07.2023 to the Liquidator informing him that the debt of the CD, held by SBI, has been assig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Department of Income Tax because in the first appeal filed by the liquidator the Respondent No. 1 is the highest bidder and Respondent No. 2 is the Income Tax Dept. whereas in the second appeal, filed by the Successful Bidder, the liquidator is Respondent No. 1 and Income Tax Dept. is Respondent No. 2. 12. In the second Appeal filed by the Successful bidder, it is submitted that purshis was filed, referring to the amended provisions of Regulation 32A(4) and IA No. 950 of 2023 was disposed of on its basis vide order dated 08.04.2023 which was never challenged and had attained finality. It is further submitted that in the case of M/s Shiv Shakti Inter Globe Exports Pvt. Ltd. Vs. M/s KTC Foods Pvt. ltd., CA (AT) (Ins) No. 650 of 2020 it has been clarified that clean slate principle is applicable to sale under Regulation 32A. In this regard, following paras needs to be highlighted which read as under: "21. Adverting to the contention of the Learned Counsel for the Appellant that the Adjudicating Authority has erred in denying the sale of the 'Corporate Debtor' as a 'going concern' to the Appellant without including any contingent liabilities, we hold that it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the direction sought for in prayer (c) & (e) in CA No. 1189 of 2019 seeking extinguishment of past/remaining unpaid outstanding liabilities including contingent liabilities, prior to the sale as a ＇ going concern', after payment of sale proceeds distributed in accordance with Section 53 of the Code, is allowed. This Appeal is allowed to the extent indicated above." 13. In the case of Haryana State Industrial and Infra Development Corporation Ltd. Vs. AAR Technoplast Pvt. Ltd. & Ors., CA (AT) (Ins) No. 606 of 2021 para 16 is relevant which is reproduced as under:- "16. We are of the considered view that once the Liquidation sale has been completed and the Certificate of Sale has been executed followed by handing over possession to the Auction Purchaser, any claim relating to such properly for dues prior to the Auction cannot be raised against the Auction Purchaser specifically when the Company is in Liquidation and the dues were already claimed by the said party as an 'Operational Creditor', during the CIRP process as the Company was in Liquidation and the Appellant had already approached the Liquidator by filing a Form-B and the Liquidator has intimated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... changed and now the sale is required to be conducted in the first attempt. 17. It is submitted that the sale was in fact conducted in the first attempt During the pendency of I.A No. 950 of 2023, a purshis was also filed on 08.04.2024 indicating therein that Regulation 32A(4) was amended on 16.09.2022 and the sale has been conducted in the first attempt where the successful bidder has paid the full amount which is more than the reserve price and I.A. No. 950 of 2023 was disposed of accordingly. 18. It is also submitted that clean slate theory also applies in the case of liquidation sale by the liquidator, therefore, the Respondent No. 2 cannot claim the past dues. It is also submitted that there is no fault on the part of the liquidator for not conducting the sale within 90 days because of the non-participation of the SBI at the relevant time who has 90.58% vote share. 19. We have heard Counsel for the parties and perused the record with their able assistance. 20. It is pertinent to mention that the going concern sale means selling the CD on ' as is where is basis' and allows the liquidator to sell the business of the CD under liquidation alongwith all the rights, titles and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that appropriate orders to be passed in the captioned application. 23. The application bearing I.A No. 950 of 2023 was ultimately disposed of on 08.04.2024, after the purshis was filed, with the following order which is reproduced as under:- Ld. Sr. Counsel for the Liquidator pleaded that the IA should get disposed off as the compliance to IBBI Circular was met even though the IA was filed seeking condonation. He is directed to file pursis today itself. In view of the clarification pursis filed, the IA is disposed off. 24. The net effect of the purshis dated 08.04.2024 is that the Tribunal was informed that there is an amendment in Regulation 32A(4) w.e.f 16.09.2022. The liquidator has complied with the amended Regulation and sold the CD as a going concern in the first attempt in the auction held on 28.08.2023, after the amendment was brought in. The successful bidder has paid the entire amount and the same was distributed to the stakeholders. 25. In such situation, the Tribunal could not have relied upon the unamended provision of Regulation 32A (4) in which it is provided that the sale has to be concluded within 90 days and the application has been filed for condonation of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
