TMI Blog2021 (7) TMI 857X X X X Extracts X X X X X X X X Extracts X X X X ..... Member(Technical) For the Appellant : Mr. Aayus Agrawal, Mr. A.K. Mishra, Mr. Rohan Agrawal and Mr. Nishit Dhruva, Advocates For the Respondent : Mr. Nand Kishore and Ms. Akshat Singh, Advocates. JUDGMENT DR. ASHOK KUMAR MISHRA , TECHNICAL MEMBER 1. The present appeal has been filed under Section 61 of the Insolvency and Bankruptcy Code, 2016 (in short Code ) against the order dated 12.02.2021 passed by the Adjudicating Authority (National Company Law Tribunal), Mumbai Bench, in I.A.No. 1036/MB/C-II/2020 in C.P. (IB) No. 294/MB/C-II/2018. 2. The Adjudicating Authority, after hearing the submission of the parties, has analysed that, no doubt, there is a delay in payment on the part of the Respondent to pay balance sale consideration but the issue to be decided is whether the delay was solely on account of the Respondent and if yes the Respondent has to pay interest for the delayed period. The Adjudicating Authority has also observed that no supporting documents fixing the responsibility to follow up with GIDC for subdivision of the land was produced by the Appellant and hence the Adjudicating Authority has directed the Liquidator/Appellant to refund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has agreed to pay for the relevant asset lot(s). The Liquidator is not bound to accept the highest offer and has the absolute right to accept or reject any or all offer(s) or adjourn I postpone I cancel the e-Auction or withdraw any asset lot or portion thereof from the E-Auction proceedings at any stage without assigning any reason there for. Return of Earnest Money Deposit of unsuccessful bidders The Earnest Money Deposit of unsuccessful bidders will be returned within 7 days from the declaration of the Successful Bidder .. Issuance of Letter of Intent The Liquidator shall, as soon as reasonably possible following the end of the E-Auction, but not more than 7 days from the end of E-Auction, issue to the Successful Bidder a letter of intent ( Loi I Letter of Intent ), inviting the Successful Bidder to provide balance sale consideration (plus any applicable GST, if any, on 100% of the bid sum) within 90 (ninety) days of the date of issuance of the Loi, This Loi per se does not confirm sale in favour of the Successful Bidder. Confirmation of sale is subject to the fulfilment of terms and conditions of E-Auction Sale and approval of the Liquidator. The Successful Bidder shall, wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... making a delayed application to the appropriate authority. The Appellant has also submitted that the Letter of Intent (LOI) dated 18.01.2020 was issued to the Respondent by the Liquidator/ appellant which was duly accepted by the Respondent and thus it was mandated for the Respondent to release the payment within 30 days failing which interest will be applicable @ 12 % p.a and outer limited for receipt of balance sale consideration was 90 days from the date of issuance of LOI. The Respondent was supposed to release the payment of balance sale consideration within 30 days i.e. by 17.02.2020. The Liquidator has also stated that sub division of the plot was accepted to the leasehold parcel of land and was not applicable to freehold land. His duty was restricted for filing of application and follow up the job of the Respondent. He has also categorically stated that he has applied for the subdivision of plot on 21.01.2020 within the stipulated time period and he has not delayed anything on his part. The Appellant has also stated that the E-auction document nowhere states that the subdivision of land is a precondition before the sale consideration is paid and the same has been unco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld not attract any interest. The Liquidator has clarified vide its email dated 09.01.2020 as follows: Interest on delayed payment shall be waived off to the extent the delay is on account of sub-division of leased land. The said clarification made the Respondent more than convincing that any delay on account of subdivision of the lease hold land, interest on delayed payment to the extent the delay is attributable to the subdivision of leasehold land shall be waived off mentioned at para 15 of the Reply of the Respondent dated 26.04.2021 . The Respondent further clarified that the Liquidator / Appellant failed to mark the letter dated 21.01.2020 addressed to the GIDC for subdivision of the leasehold land. The Appellant did not provide a copy to the Respondent. The Respondent has acknowledged that the actual area of the lease hold land is 295309.45 sq. mtrs. as survey by GIDC instead of 282977.40 Sq meter as provided in the e-auction memo and that the additional area is chargeable from the respondent at the bid rate. The Respondent has also accepted that the Liquidator/ Appellant has asked the Respondent vide its letter dated 12.03.2020 to make the payment of ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ook) provides as follows: BID PROCESS 1. This Document has been issued for the purpose of carrying out electronic auction ( E-Auction ) of assets of SKNL under IBC and Liquidation Process Regulations. 2. All information provided in this document should be read together with the provisions of the IBC and the Liquidation Process Regulations. In the event of a conflict between this document and IBC or Liquidation Process Regulations, the provisions of the IBC or the Liquidation Process Regulations, as the case may be, shall prevail. 3. The information contained in this document or subsequently provided to Bidder(s), whether verbally or in documentary or any other form by or on behalf of the Liquidator, is provided based on the terms and conditions set out in this document. 4. This document is neither an agreement nor an offer by the Liquidator to the prospective Bidder(s) or any other person. The purpose of this document is to provide interested parties with information that may be useful to them in making their bids pursuant to issue of this document. The assumptions, assessments, statements and information contained in this document may not be complete, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been appointed as the E-Auction Service Provider. The sale of the Properties shall be undertaken by the E-Auction Service Provider for and on behalf of the Seller through an E-Auction platform provided on the website portal of the E-Auction Service Provider (Platform). Other details with respect to the e-auction are as follows: Particulars Descriptions Types of Bid E-Auction Seller SKNL represented by the Liquidator Mr. Om Prakash Agrawal, E-Auction Service Provider E-Procurement Technologies Limited (Auction Tiger) Website of E-Auction Service Provider httQs://ncltauction.auctiontiger.net Annexure and Formats Annexure I -Affidavit and Undertaking Annexure II -Bid Form (to be filled in and signed and stamped by the Bidder(s) and uploaded) Annexures and Formats Annexure III-Declaration by the Bidder(s) (duly filled in and signed and stamped by the Bidder(s) and uploaded along with the Bid form) Annexure IV -Technical Terms an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Description Reserve Price (Inr Crores) Earnest Money Deposit(INR Crores) 1. Leasehold Part of Plot no. 825 of Jhagadia GIDC, Bharuch in Land the village Dadheda, Jhagadia Taluka, Bharuch District, Gujarat having a total land area of 42.04 acres I 1,70,133 sq. mt. or 18,31,294 sq. ft. This land is leasehold from GIDC and is subject to sub- division of said Plot. 201.80 20.18 Factory Building Plant building along with ancillary structures having total built up area of 61,994 sq. mt. or 6,67,298 sq. ft. This also includes land developments in form of boundary walls, Sewage line, streetlights, internal roads etc. Plant and Machinery Plant and Machinery which includes all the machineries installed for manufacturing of fabric as well as equipment installed in utility such as boiler, DG set, ETP, STP etc. This also includes furniture fixture, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ook which reads as under: Clause 13 (B). -The Successful Bidder/s shall bear the sub-division charges of land payable on land area proportionate to area in Lot No.1 and Lot No.2 respectively. The Liquidator shall apply for sub-division of GIDC plot after issuance of LOI to the Successful Bidder/s and such Bidder/s shall pay the amount of sub-division charges within 10 days from the date of demand. In case, the bid succeeds only for one of the Lot no. 1 or for Lot no.2, the Successful bidder shall initially pay full amount of sub-division charges and said Successful Bidder shall be given due set off for the excess amount, in subsequent payments/ final payment. e. The Appellant/Liquidator vide its email dated 09.01.2020 has also confirmed the Respondent as follows: Interest on delayed payment shall be waived off to the extent the delay is on account of sub-division of leased land. f. However, the Respondent has failed to pay the sale consideration even for the freehold part of the land. Hence, making an issue of sub-division of the land is not fully correct for late releasing the payment. g. Considering all these submissions of the Adjudicating Authori ..... X X X X Extracts X X X X X X X X Extracts X X X X
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