TMI Blog2021 (5) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... e cost of ships and vessel under construction is included in the reserve price as ₹ 121 crores. Furthermore, Applicant of IA 238 of 2021 has paid total ₹ 169.11 crores i.e. higher than the reserve price. On perusal of the record, it is found that the delivery note was executed on 07.12.2020 and the final transfer was made after passing the order of Private Sale. Hence, the allegation that the Liquidator has entered for Private Sale prior to the permission granted by this Adjudicating Authority is not sustainable, in as much as, on 28.11.2020 no transfer has taken place. That apart, Liquidator has given the delivery note only on 07.12.2020 i.e. after getting the permission of Private Sale. It is also pertinent to mention herein that the material was also sold above the Reserve Price as per Regulation 33 of the Liquidation Process Regulations, 2016. Hence, there appears to be no irregularity. Application not maintainable. - I.A. No. 136 of 2021 in I.A. No. 698 of 2020 in CP(IB) No. 53 of 2017 and I.A. No. 238 of 2021 in I.A. No. 136 of 2021 in CP(IB) No. 53 of 2017 - - - Dated:- 12-4-2021 - Manorama Kumari, Member (J) And Chocklingram Thirunavukkarasu, Member ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amendment on 18.08.2020 and again on 31.03.2020 with the second amendment. While making the second amendment on 31.08.2020, it was mentioned as it is clarified that persons bidding for the parcels containing land will get preference in terms of purchase of the sheds, provided the same has been bid for. Preference shall be given to the bidders as per the relevant clauses of the Sale Process Document. The copy of these documents is annexed in the application as Annexure- A3 (Colly). 2.4 In view of the fifth advertisement for e-auction with second amendment, Applicant sent an e-mail dated 24.09.2020 to the Respondent expressing his interest in purchasing the assets of the Company in Liquidation. It is further submitted that on 25.09.2020, a note was published by the Respondent on the website of the Company in Liquidation terminating the sale process commenced vide advertisement dated 05.08.2020 and which was amended from time to time. 2.5 It is further submitted by the Applicant that on 03.10.2020, Respondent (Liquidator) replied to the email dated 24.09.2020 sent by the Applicant and asked for purchase offer and description of the assets that the Applicant was interested ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mts. and 8 metal sheds with fixed machineries admeasuring around 24,000 sq. Mts. and 2 metal sheds with fixed machineries admeasuring around 2,500 sq. Mts. with his express willingness to revise its offer for better price if CoC proposes some modification in the offer made by the Applicant. Since no response was received from the Liquidator, Applicant addressed another email dated 16.12.2020 to Respondent proposing to purchase all the assets of the Company in Liquidation viz. Surat Unit-I Surat Unit-II. Respondent, in response, vide its email dated 16.12.2020 replied stating that he is on leave till 22.12.2020 and therefore, not in the position to reply to the emails of the Applicant. Applicant further sent email on 17.12.2020 expressing his willingness to purchase both the units of the Corporate Debtor. 2.9 It is alleged by the Applicant that Respondent vide email dated 17.12.2020 informed the Applicant that metal scraps, sheds, etc. have been sold out and only land is available for sale. In view of that, Applicant vide email dated 18.12.2020 inquired about the sale of metal scraps shed being made and sought reason for not considering the offer made by the Applicant. Insp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f time with respect to the property (Annexure A-3 at page no. 72 of the application) i.e. in category B1(a), B3(a), B3 (b) B3(c). In view of such objections, this Adjudicating Authority passed a status quo order on 15.03.2021 with regard to above mentioned properties. During the pendency of this application i.e. IA 136 of 2021, an application i.e. IA 238 of 2021, was filed by one Ratnajyot Steel Pipes Private Limited with a prayer to implead the Applicant as party Respondent in IA 136 of 2021 and further, to vacate the status quo order dated 15.03.2021 passed on the property covered under category B1(a), B3(a), B3 (b) B3(c) (hereinafter referred as Surat Scrap ) which are sold by Respondent No. 2 (Liquidator) in favour of the Applicant of IA 238 of 2021. 5. It is further stated by the Applicant of IA 238 of 2021 that the Applicant has entered into the Agreement to Sale with the Liquidator and delivery note has been executed and if the order of status quo dated 15.03.2021 is not vacated, it will cause irreplaceable loss to the Applicant. On hearing both the sides, Respondent of IA 238 of 2021 was directed to implead the Applicant of IA 238 of 2021 as a party Respondent in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Corporate Debtor. The said sale was concluded under Regulation 33 (2)(c) of the Liquidation Process Regulations which provides that an asset may be sold by way of a private sale at a price higher than the reserve price on a failed auction, for which the permission of this Adjudicating Authority is not required as such under the said Regulations. 9. It is further submitted by the Liquidator that by making a Private Sale, Liquidator has acted in accordance with the due process as envisaged in the IB Code and Regulations therein and with due consultation of the stakeholders with the object of maximising the value of the assets of the Corporate Debtor. To that effect, progress report has also been filed before this Adjudicating Authority as per Law. It is submitted that there is no cause of action to maintain the present application (IA 136 of 2021), hence the same is required to be rejected. 10. Liquidator further submitted that the Applicant of IA 136 of 2021 never participated in any of first five auctions process concluded by the Liquidator for sale of the assets of the Corporate Debtor. It was only on 24.09.2020, that the Applicant for the first time expressed its inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 021) and the Liquidator (Respondent of IA 136 of 2021) praying inter alia to implead the Applicant of IA 238 of 2021 as party Respondent and also seeking vacation of the order of status quo dated 15.03.2021 passed in IA 136 of 2021 over the properties covered by B1(a), B3(a), B3 (b) B3(c) (Surat Scrap) which are sold by the Liquidator (Respondent No. 2 in IA 238 of 2021) in favour of the Applicant. 14. On receipt of the copy of IA 238 of 2021, Respondent No. 1 (Applicant of IA 136 of 2021) filed his reply and denied all the allegations and averments made in the application i.e. IA 238 of 2021. In the reply, Respondent alleged that Liquidator has made sales of the scrap of the Company in Liquidation which is more particularly described as Surat Scrap under the modes of sale permitted under IB Code including by means of private sale without obtaining the permission of this Adjudicating Authority, hence, such sale is illegal and void. It is further submitted that Agreement to Sell of Surat Scrap was executed between the Applicant (M/s. Ratnajyot Steel Pipes Private Limited) and Respondent No. 2 (Liquidator) on 28.11.2020 whereas the order of Private Sale was passed by the Adjud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Corporate Debtor. However, in the said letter, Applicant expressed that they are keen on buying some individual assets from ABG Shipyard Surat like crawler crane, hydra, gantry, etc. . In view of the said letter, Liquidator gave his reply on 03.10.2020 giving certain information i.e. with regard to the offer price, upfront payment (LC/BG), payment terms, 29A, confidentiality undertaking and site visit. 18. Thereafter, Applicant of IA 136 of 2021 sent an email on 06.10.2020 to the Liquidator that they are interested in the Surat ABG 2 parcel with land and machinery and Surat Land parcel. Meanwhile the Applicant has sent the confidentiality undertaking, an affidavit under section 29A of the IB Code to Liquidator and also informed vide letter dated 15.10.2020 that Applicant would like to visit ABG I II in Surat between 22.10.2020 to 24.10.2020. In between, Liquidator and the Applicant have also exchanged the name of the person who will visit the site. 19. On perusal of the record, it is found that on 18.11.2020, Applicant of IA 136 of 2021 has shown his interest in respect of Surat Shipyard (Land and office building)- metal shed and warehouse, metals and other assets in S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hase the property in question on satisfaction of certain conditions. Hence, the Sale Agreement is only a promise for future transfer of property ownership, which is not absolute unless the conditions are fulfilled . Hence, the allegation made by the Applicant of IA 136 of 2021 that Agreement to Sale was entered on 28.11.2020, whereas, the order of Private Sale was passed by this Adjudicating Authority on 02.12.2020, is against the established procedure of law. That apart, it is pertinent to note herein that the Applicant of IA 136 of 2021 has given its offer at much belated stage i.e. after delivery note was executed. 22. However, on perusal of the record, it is found that the delivery note was executed on 07.12.2020 and the final transfer was made after passing the order of Private Sale. Hence, the allegation that the Liquidator has entered for Private Sale prior to the permission granted by this Adjudicating Authority is not sustainable, in as much as, on 28.11.2020 no transfer has taken place. That apart, Liquidator has given the delivery note only on 07.12.2020 i.e. after getting the permission of Private Sale. It is also pertinent to mention herein that the mater ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
