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2019 (11) TMI 443

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..... ty 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 excluding the asset of corporate debtor does not arise at all. 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 .....

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..... e 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 Corporate Debtor through e-auction held on 0105.2018 on the basis of highest bid of ₹ 2,16,00,000/- out of which the applicant deposited ₹ 54 Lakhs on 27.04.2018 and thereafter deposited ₹ 26 Lakhs on 18.05.2018, the aforesaid e-auction was held for realization of debts due to Bank of Baroda (sole Secured Creditor) of the Corporate Debtor. (b) Applicant stated that by lette .....

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..... 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 moratorium period, the bank did not proceed. (ii) Further stated that section 65 of the Code only empowers imposition of penalty for initiating insolvency proceedings frequently or with malicious intent. The said section doesn t not in any manner allow to exclude CIRP Process by this tribunal. 5. Applicant has replied to the objection taken by the Bank of Baroda stating that auction held on .....

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..... r, 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 orally alleged the same. This tribunal after ascertaining all aspect of the petitioner/operational creditor under Section 9 of IBC has admitted the petition and for lack of any proper evidence, hence this Adjudicating Authority does not feel appropriate to invoke section 65 of the IB Code. 10. Lastly, Member of COC i.e. Bank of Baroda has already admitted that as being member COC when th .....

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