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2019 (11) TMI 443

..... orporate debtor - Section 60(5) of the of Insolvency and Bankruptcy Code, 2016 read with Section 65 of the Insolvency and Bankruptcy, 2016 - HELD THAT:- A perusal of record shows that Applicant at initial stage had filed an I A No. 190/2018 praying for similar relief and this bench vide its order dated 29.08.2018 has already rejected the Application by discussing that this Adjudicating Authority has no power under the IB Code to review or recall its order. Further it was also held that auction cannot be considered complete since the applicant/auctioneer failed to deposit the auction money within stipulated time, therefore auction purchaser did not acquire any vested right over the property of the Corporate Debtor. Therefore, the question of .....

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..... , Adv. For The Bank of Baroda : Amit deedwania, PCS ORDER As Per : Saroj Rajware, Member Technical 1. The present Application is filed under Section 60(5) of the of Insolvency and Bankruptcy Code, 2016 read with Section 65 of the Insolvency and Bankruptcy, 2016 in compliance of order of Hon ble Highcourt in Writ C- No- 32675/2018 in the matter of Khan Enterprises v. NCLT & ors, were by the Hon ble Highcourt granted petitioner a liberty to approach NCLT if petitioner feels that CIRP was initiated fradulently in collusion with operational creditor or petitioner has perfected its right over property of the corporate debtor. 2. Brief fact of the case are as follows: (a) The Applicant is auction purchaser of the Asset/Machinery of the Corpor .....

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..... d COC file Counter to the Present CA. 4. RP and COC submitted their counter to the Present CA and stated: (i) That by the time the bank conducted the e-auction of the plant and machinery of the corporate debtor, the order on the application for initiation of CIRP came to be passed by the Tribunal on 10.05.2018 and the moratorium period as prescribed under section 14 of the IBC started and therefore the sale confirmation letter issued on 14.05.2018 after the aforesaid order on 10.05.2018, became null and void ab initio. Hence stated that bank was not aware of the insolvency proceedings and therefore inadvertently issued the letter of confirmation, however, as soon as the Bank came to know of the passing of the order and declaration of morato .....

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..... view or recall its order. Further it was also held that auction cannot be considered complete since the applicant/auctioneer failed to deposit the auction money within stipulated time, therefore auction purchaser did not acquire any vested right over the property of the Corporate Debtor. Therefore, the question of excluding the asset of corporate debtor does not arise at all. 9. Further, for imposition of cost to the Operational Creditor under section 65 of the IB Code, applicant has failed to prove or brought any evidence to the knowledge of this tribunal that Operational Creditor with fraudulent or malicious intention other than bringing resolution for the company initiated the CIRP proceedings against the Corporate Debtor and has only or .....

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