TMI Blog2019 (10) TMI 1497X X X X Extracts X X X X X X X X Extracts X X X X ..... of this order while deciding this IA No. 32/2018, the said order of Debt Recovery Tribunal, Jaipur dated 31.01.2019 need not be considered at all. This fact, it appears that it was concealed from the knowledge of the Hon'ble National Company Law Appellate Tribunal by Respondent No. 2. In IA No. 178/JPR/2019, the said order of the Debt Recovery Tribunal, Jaipur dated 31.01.2019 in SA No.2212018 was filed and a perusal of the same depicts that the said order of Debt Recovery Tribunal has no bearing on the present issue connected with IA No. 32/60/JPR/2018. The Judgements and Annexures thereon clearly reveals that the Respondent No. 3 made it very clear to the Respondent No. 2 to acquire the Unit No. I of the Corporate Debtor on AS IS WHERE IS BASIS, AS IS WHAT IS BASIS, WHATEVER TFDRE IS BASIS which implies that it shall also acquire all the liabilities thereon - the Respondent No. 2 shall bear all the claims of the Respondent No. 1 and Respondent No. 5 - In the event any money which has been deducted towards statutory dues of EPF and is still lying with the corporate Debtor, the pp shall forthwith credit the same to the appropriate accounts of the concerned Authority. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocuments available as handed over by the IRP, he observed that one of the assets i.e. Unit No. 1 of the Corporate Debtor, an industrial land along with plant and machinery situated at Khasra No. 317, Village- Pitwas, Badrama, Area20 Biga 13 Biswa (12.90 acres), Near Kanakpura Railway Station, P.O Meenawala, Jaipur registered with Sub-Registrar Jaipur at Book No.-1 Volume-3 575 at Page No. 16301 69 at Serial No. 1275 was sold off by the Respondent No. 3 i.e. the Allahabad Bank being a Financial Creditor under the provisions of the SARFAESI Act, 2002. Thus, the sale took place before the CIRP was commenced. 3. According to the RP, the Respondent No. 2has purchased the said Unit-l for an amount of ₹ 27,61,00,000/-. Then the Corporate Debtor vide letter dated 22.11.2017 had appraised the Respondent No. 3 of the dues of the workers/ employees up to 30.11 .2017 and requested the Allahabad Bank to pay from the proceeds received from the auction of the property or in the alternative requested the proposed buyer to pay the dues as per the list attached to the said letter. A copy of the letter dated 22.11.2017 is annexed in the application and marked as Annexure A-7. 4. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 17,51,325/- (current dues) and another disputed amount of ₹ 3,09,18,151/- b) Income Tax dues of ₹ 4,15,59,150/- Further, you were informed demands received from various Employee /Organisation /representative stating lraising following demands : - a) Employee salary dues given by M/s Anil Special Steel Industries Ltd. of ₹ 6,01,67,395/- up to 30.11.2017. b) Outstanding labour payment of ₹ 3,47,71,283/- c) Retired worker dues of ₹ 83,46,026/- d) Pending dues of Mahender Orthopaedic Centre of ₹ 1,34,000/- Further you were already informed vide our E-mail with attachment of letter no. JPMIRD/ADV/2017-18 dated 19.12.2017 as under: - a) Notice issued by Regional Joint Labour Commissioner dated 23.11.2017, 07.12.2017, 14.12.2017 regarding non-payment of three months salary under industrial dispute matter. b) Legal Notice under Section 8 of the Insolvency and Bankruptcy Code dated 01.12.2017 received from Aruna Gupta (lawyer) c) Legal Notice dated 08.12.2017 received -fro* Mahender Orthopaedic Centre through Advocate Narendra Kumar Sharma. d) Form-S dated XX.12.2017 for filing app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annexed with and marked as Annexure A-13 to the application. 10. The learned counsel for the RP contends that from a bare perusal of the Certificate of Sale dated 09.12.2018 issued by the Respondent No. 3 to M/s Tarun International Ltd i.e. the Respondent No. 2 and the conditions as set out by the Respondent No. 3 vide letter dated 21.12.2017 referred afore, it is evident that in terms of the sale, the liabilities of the Corporate Debtor towards the employees' salary dues as on 30.11.2017 and outstanding as on labour payment of ₹ 3,47,71,2831- and further dues up to 09.02.2018 was the liability of the purchaser i.e. the Respondent No. 2. He further contends that the Respondent No. 1 also represented to the then IRP through its letter dated 18.03.2018 and further to the applicant, the present Resolution Professional through the letter dated 20.07.2018 that the liabilities of employees and workers were duly informed to Respondent No. 3 and were part of terms of sale of Unit No-1 by the Allahabad Bank under the SARFAESI Act, 2002 and thus it is the liability of the Respondent No. 2. The copies of the said letters dated 18 03.2018 and 20.07.2018 are filed as Annexure A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aining to Unit No.-1 which had been sold under the SARFAESI Act, 2oo2 prior to the CIRP commencement date are payable by the Purchaser of Unit No. 1 i.e. the Respondent No. 2 herein or the same continues to be admissible as claims against the Corporate Debtor. 14. The learned counsel for the applicant submits that in terms of the Sale Certificate dated 09.02.2018 issued by the Respondent No. 3 to the Respondent No. 2 and the conditions as set out by the Allahabad Bank i.e. Respondent No. 3 vide letter dated 21.12.2017, it is evident that in terms of the sale, the liabilities of the Corporate Debtor towards the salary dues of ₹ 6,07,67,3951- as on 30.11.2017 and outstanding labour payment of ₹ 3,47,71,2831- and further dues up to 09.02.2018 were the liabilities of the purchasers i.e. the Respondent No. 2. In view of the above circumstances, although, the IRP has admitted the claim of workers and employees of Unit No.-l of the Corporate Debtor considering it as a liability of the Corporate Debtor, the present application is filed. The learned counsel for the corporate Debtor contends that Regulation- l4(2) of the CIRP Regulations, 2016 casts a duty upon the IRP or t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . vs. The Regional Provident Fund Commissioner), g. The Judgement of the Hon'ble High Court of Punjab and Haryana reported in 2012 LLR 210 (Tayal Energy Ltd, Goindwal Sahib Vs. Regional Provident Fund Commissioner and Ors.), h. The Judgement of the Hon'ble High Court of Gujrat reported in2009 LLR 680 (Employees Provident Fund Organisation Vs. Jai Corporation Limited) and i. The Judgement of the Hon'ble Supreme Court of India in Rana Giders Ltd. Vs. Union of India and Anr. Reported in (2013) 10 SCC 746. These judgements however, have different circumstances and would not support the contention of the Respondent No 2 that the entire responsibility falls on the Respondent No. 3. 16. The Respondent No. 3, the Allahabad Bank has filed its reply stating that the Respondent No. 3 had initiated proceedings for recovery of its dues against the Corporate Debtor under the SAMAESI Act, 2002 and in sequence thereof issued notice of sale bearing Auction No. ANBA4/RD/2l0l77/20l7-181413 dated 15.11.2018 for sale of land and building, plant and machinery etc of the principal borrower i.e. the Corporate Debtor. In the said notice under the heading details o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RE IS BASIS''. (ii) Further, Column 6 of the said notice dealing with Details of the encumbrance known to the secured creditor clearly stipulated that Other Liabilities (Statutory/Other dues, if any) of the property put under E-auction as mentioned in this notice will be borne by the prospective purchaser . (iii) Further, Clauses l9 and 20 read as under; 19. For verification about the title document, property inspection thereof, the intending bidder may contact Allahabad Bank, Jaipur Main Branch (Ph No: 0I4I -2 379383/23705I9) during office hours. 20. To the best knowledge and information of the Authorised Officer, there is no encumbrance on the property/ies other than mentioned above (rf any). However, the intending bidders should make their own independent inquiries regarding the encumbrances and claims/ rights/ dues/ affecting the property, prior to submitting their bid. The e-auction advertisement does not constitute and will not be deemed to constitute any commitment or any representation of the Creditor shall not be responsible in any way for any third-party claims/ rights/ dues other than mentioned above (if any) . (iv) That the a for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e bidding process. The said letter mandated the bidder to analyse the situation and satisfy itself about the property, dues etc. prior to the bidding. The relevant portion of the letter reads as follows: - This has reference to your bid submitted on 15.12.2017 along with an EMD of ₹ 2.74 Cr for participating in E-Auction for account M/s Anil Special Steel Industries Ltd. In this regard, you being the intending buyer, we would like to inform that we have received following demand letters from PF Department Income Tax Department which is as below: l. Recovery of PF Department of ₹ 1,75,I,325/- (current dues) and another disputed amount of ₹ 30918151/- 2. Income Tax dues of ₹ 41559 t 50/- We have also received representation/letters from various empIoyee organizations/representatives stating/raising various employee's/ other demands. The details of which are as below; 1. Employee salary dues given by M/s Anil Special Steel Industries Ltd. of ₹ 60 I 67 395/- up to 30. I 1.2017 2. Outstanding labour payment of ₹ 34771283/- 3. Retiredworker dues of ₹ 8346026/- 4. Pending dues of Mahend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a. The judgement of the Hon'ble National company Law Appellate Tribunal, New Delhi in company Appeal (AT) (Insolvency) No. 719 of 2018 dated 11.10.2018 (Encore Asset Reconstruction Co. Pvt. Ltd. Vs. Ms. Charu Sandeep Desai Ors.) b. The judgement of the Hon'ble National company Law Tribunal, New Delhi in 152 SCL 771 dated 08.03.2019 (Edelweiss Asset Reconstruction Co. Ltd. Vs. Net 4 India Limited) c. The judgement of the Hon'ble Supreme Court of India in2019 SCC Online SC 73 Writ Petition (Civil) No. 99 of 2018 dated 25.01.20tg (Swiss Ribbons Pvt. Ltd and Another Vs. Union of lndia and Others) d. The judgement of the Hon'ble National company Law Appellate Tribunal, New Delhi in company Appeal (AT) (Insolvency) No. 743 of 2018 dated 26.02.2019 (Navneet Kumar Gupra vs. Bharar Electricals Limited) e. The judgement of the Hon'ble High court of Kerala in w.p. (c) No. 14496 of 2008 dated 23.09.2011 (N.p. pushpangadan and ors. vs. Federal Bank and Ors.) f The judgement of the Hon'ble High Court of Calcutta in WP No. 38III (W) of 2011 dated 29 .08.2014 (Mahendra Mahato Another Vs. Central Bank of India and Others) g. The jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e copy of the order dated 31.01.2019 passed by DRT, Jaipur dismissing the SA filed challenging the auction by the Allahabad Bank under SARFAESI Act, which is dismissed on 31.01.2019. This order has no relevance or legal bearing as it has reached to finality, in view of the none of the parties challenging the said order. Hence IA No. 178/JPR/2019 is dismissed and disposed of. Hence, this Tribunal already held that that this order has no relevance or legal bearing and in the light of this order while deciding this IA No. 32/2018, the said order of Debt Recovery Tribunal, Jaipur dated 31.01.2019 need not be considered at all. This fact, it appears that it was concealed from the knowledge of the Hon'ble National Company Law Appellate Tribunal by Respondent No. 2. In IA No. 178/JPR/2019, the said order of the Debt Recovery Tribunal, Jaipur dated 31.01.2019 in SA No.2212018 was filed and a perusal of the same depicts that the said order of Debt Recovery Tribunal has no bearing on the present issue connected with IA No. 32/60/JPR/2018. 25. A perusal of all the above pleadings, the Judgements and Annexures thereon clearly reveals that the Respondent No. 3 made it very clear ..... X X X X Extracts X X X X X X X X Extracts X X X X
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