TMI Blog2020 (8) TMI 915X X X X Extracts X X X X X X X X Extracts X X X X ..... xure - V of Sale Notice compared with Annexure - V of the information document. Clearly what was sold as Plant and Machinery was different and much more than what was advertised in the Sale Notice. How can Reserve Price for Plant and Machinery remain same even after embedded huge structures were shifted from Block 'A' to Block 'B' in that category? They could not have and should not have been shifted. What was later taken away by the Respondent No. 2 was shocking and still worst. We will discuss that after sometime. Here, we record that there is material difference between what was advertised in Public Notice and what was put in the information document and actually passed on by way of Sale Certificate. The above factors are themselves sufficient to set aside such auction which must be said to be vitiated as there is fundamental defect in putting up the articles for auction. Liquidator failed to prescribe pre-bid Qualifications - Defective Auction process - HELD THAT:- The Regulations required the Liquidator to prescribe pre-bid qualifications. This does not appear to have been done in spite of value and volume of material and thus, with practically one b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding of its pending claims and details of the developments in litigation and how unknown persons claiming to be representatives of Respondent No. 2 had come to take away plant and machinery from project site claiming that there was Sale Certificate, Schedule of which shows it included Plant and Machinery over which lien/charge is claimed; and that large quantity of Plant and Machinery is removed by them. Appellant claims to have then filed CA 684 of 2019 (Annexure - 15) against the auction on 3rd June, 2019. No proper system put in place by Liquidator - HELD THAT:- On 7th August, 2019, this Tribunal had in Company Appeal (AT) (Ins) No. 802 of 2019 (Annexure - 22) directed the Adjudicating Authority to decide the Appeal of Appellant on an early date and in the meantime, Liquidator was directed not to allow any person to remove the assets in question even if it is sold but if not yet removed. On that date of 07.08.2019, Counsel for Respondent No. 1 kept opposing the Appellant, not telling us that on 05.08.2019, his representative visited the project site and found Respondent No. 2 had already removed items worth Rs. 20 Crores illegally and Respondent No. 1 had filed Police Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... HELD THAT:- Considering the provisions (as discussed in detail by the Adjudicating Authority) as found in Section 3(30) which defines Secured Creditor and Sections 3(31), 3(33) read with Section 238 of IBC, if benefit is to be taken under the provisions of IBC, it can be done if there was a contractual arrangement/transaction creating security interest in favour of the Creditor. It has to be a security interest which is created as such. IBC is complete Code in itself. The Appellant is claiming to be Secured Creditor on statutory basis. Admittedly, the Appellant is not relying on any contractual provision, or transaction creating security interest to claim benefits of lien/charge - the Appellant cannot be treated as Secured Creditor. Appeal allowed. - Company Appeal (AT) (Ins) No. 22 of 2020 - - - Dated:- 10-8-2020 - [Justice A.I.S. Cheema] Member (Judicial), [Justice Anant Bijay Singh] Member (Judicial) and [Kanthi Narahari] Member (Technical For the Appellant: Mr. Punit Dutta Tyagi and Ms. Swastika Chakravarti, Advocates For the Respondent: Mr. Guarav Mitra, Mr. Nipun Gautam and Mr. Kanishk Khetan, Advocates, Mr. Abhijeet Sinha and Mr. Kumarjit Banerjee, Advoc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nery supplied and/or erected. It was filed on 13th January, 2018. Subsequently, CIRP failed and on 11.10.2018, liquidation Order came to be passed. Respondent No. 1 - Mr. Anil Goel, who was earlier Resolution Professional, came to be appointed as Liquidator. On 9th November, 2018, Appellant filed Form 'C' (Annexure - 5 - Page 254) claiming similar lien/charge on the plant and machinery supplied and/or erected and to be Secured Creditor. It is argued that the Liquidator passed Order dated 31st December, 2018 (Annexure - 8 - Page 299) provisionally admitting monetary claim of BHEL and classifying BHEL under Section 53(1)(f) of the Insolvency and Bankruptcy Code, 2016 (IBC - in short). The provisionally admitted claim was of Rs. 290,01,85,395/- (out of Rs. 664,98,37,221/-). Claim of lien/charge of the Appellant was rejected and the Appellant was treated as Unsecured Creditor. As such, the Appellant filed Appeal to Adjudicating Authority having CA No. 149/2019 and sought setting aside of the Order dated 31st December, 2018 and that lien/charge of the Appellant should be accepted. It is claimed that in the meanwhile, the Liquidator published Sale Notice advertisement (Annexure 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant states that the Appellant did not know about issue of such Sale Notice or auction process and when Respondent No. 2 went to remove material from project site, Appellant immediately issued Notice to Liquidator and Respondent No. 2 not to remove the material from site. Copy of the Notice dated 28th May, 2019 is relied on (Annexure - 14 - Page 430). 4. Appellant claims that although Liquidator had gone ahead to confirm sale by issue of Certificate of Sale to Respondent No. 2, he called the Appellant for a sham hearing by sending e-mail on 27th May, 2019 (Annexure - 14) and subsequently, passed Order dated 3rd June, 2019 (Annexure - 16 - Page 455), now accepting monetary claim of Appellant to extent of Rs. 5,72,19,46,434/- rejecting the same to the extent of Rs. 92,78,90,786/-. The Liquidator again rejected the claim of lien and/or charge and held that the Appellant was Unsecured Creditor. Auction and Sale Challenged 5. The Appellant on 4th June, 2019 filed CA 684 of 2019 (Annexure - 15 - Page 435) and challenged the auction and sale carried out. Appellant also filed CA 792 of 2019 (Annexure - 18) on 19th June, 2019 against Liquidator's Order dated 3rd June, 2019 rej ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idator while accepting or rejecting the valuation reports to arrive at the reserve price of the assets for auction are as under:- i. The plant and machinery lying un-erected at the project site has not been valued by Adroit, Mr. Ankit Goel and perhaps even by Mr. Partha Pratim. ii. Whether the un-erected plant and machinery was valued by United at all is not clear. If at all it was valued, then approx. what quantity was considered for valuation cannot be found out from the report. iii. Partially erected TG Structure, Boiler Tower and ESP has been considered under Land and Building by Mr. Ankit Goel and has been valued in area, whereas Adroit has valued the same Boiler Tower and ESP under Plant and Machinery. Like un-erected plant and machinery, Adroit has completely left out TG Structure and no valuation is done for the same. iv. Mr. Partha has appeared to have valued the erected structures as part of plant machinery however, there is a complete mismatch in quantity. Mr. Partha has appeared to have taken less quantity/weight into account as compare to Adroit. v. It is not clear whether the erected structures were valued at al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... malies/discrepancies in Auction found by Adjudicating Authority 8. The Appeal refers to the Impugned Judgement and Order and referring to the Order, it is claimed that the Adjudicating Authority found the following anomalies/discrepancies in the auction process:- (i) Auction sale without deciding the Appellant's 'security interest' by the liquidator is in violation of Section 52. (ii) Liquidator has shown undue unexplained urgency in auction sale. (iii) There are inconsistencies and contradictions in valuation reports procured/relied upon by the Liquidator. (iv) Undisputedly, case of improper valuation is made out. (v) Plant machinery sold to the auction purchaser is different from what was valued for auction. (vi) Assets advertised under the head land and building were sold as part of plant and machinery . (vii) Items sold to the auction purchaser are undervalued. (viii) As regards, 2nd bidder Pavani Construction it admitted that it's a shell company and has no credentials even for depositing the 10% EMD. however, failed to appreciate that the auction purchaser is the only beneficiary of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia) registered valuers came at Rs. 14.93 Crores. However, the reserve price of Block (B) was fixed at Rs. 23.30 Crores. Liquidator claims that this was fixed pursuant to directions of stakeholders. According to the Respondent No. 1, the NIT and LOA given to the Appellant did not provide for any written security nor Appellant entered into any formal contract. The LOA mentioned about payments secured by Letter of Credit but it was not followed up by Appellant. The same was waived off which is an admitted position. Thus, according to him, there was no security created and the Appellant was not Secured Creditor. Thus, the Liquidator is defending his actions. Defence of Respondent No. 2 10. The Respondent No. 2 - auction purchaser claims and argues that it is bona fide purchaser who was successful in the auction sale conducted by way of e-auction on 1st May, 2019 and was issued Sale Certificate on 20th May, 2019 after depositing entire consideration amount of Rs. 27.61 Crores (including GST). It is claimed that the Appellant objected belatedly on 3rd June, 2019. Respondent No. 2 has argued regarding the claims made by the Appellant regarding lien and charge. The Respondent No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he condition in which something can happen or exist. It also means to confer a right or to give rise to right or title or interest. Thus, there must be an action or process of creating meaning thereby that such creation is a result of an action by the parties consciously or explicitly. To explain it further, in our view, a security interest that arise due to operation of law or due to any event other than a deliberate act of creation or provision by the parties will not be covered the under definition of secured creditor as well as of security interest as given in IBC, 2016. b) The Adjudicating Authority then went ahead to observe that IBC provides for interest creating or providing for security interest and observed that these provisions of Sale of Goods Act and Transfer of Property Act relied on by the Appellant were inconsistent or contrary to the specific provisions of IBC and hence not applicable. Here itself, we may make observations that we would not hold those provisions as inconsistent or contrary but we would hold that the provisions and principles underlying the said provisions can be utilized subject to specific creation or provision of security interest by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 792/2019. This application raises following questions:- (1) Whether liquidator has complied with the order of the Tribunal dated 10.05.2019 in CA/149/KNB/2019? (2) Whether there exists a case for cancellation of auction? Whether restitution as claimed by the applicant can be made and any mechanism is prescribed for enforcement of such claim in IBC, 2016? Adjudicating Authority held Liquidator should have decided claim of lien/charge before issue of Sale Certificate e) The Adjudicating Authority then went on to discuss the above questions and in Para - 81 observed as follows with regard to question No. 1:- 81) In the present case, the liquidator treated the applicant as unsecured creditor in his provisional order dated 31.12.2018 against which an appeal in C.A.(IB) No. 149/KB/2019 had been filed and final order was passed on 10.05.2019 whereby the provisional order of the liquidator dated 31.12.2018 had been set aside and the liquidator was directed to decide the claims made by applicant afresh. Thus, having regard to the sequence of events, the claim of lien/charge had to be decided prior to issue of sale certificate. On this basis, it can safely be conclud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cribes norms for preparation of information memorandum and evaluation matrix having regard to the complexities involved in a particular case. Though, such requirement is not applicable in the course of liquidation process, unless corporate debtor or its business is being disposed of ongoing concern basis. Having said so, this does not mean that disposal of assets can be done without having any intelligent criteria being applied for eligibility of bidders. In the present case, as stated by the liquidator, the only criteria which has been fixed was that deposit of 10% of amount as earnest money deposit (EMD). In our view, when sale of such a huge plant at very large site is involved, the background of the bidder is very important and their past experience of participation in such kind of auction and completing the auction transaction in a smooth manner is of utmost importance. However, in the present case, this criteria has not been appeared to have been followed. The financials of the second bidder do not support the credential even for depositing of 10% EMD. 89) There appears to be claims and counter claims as regard to what has been valued and what has not been valued. There al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 218 of IBC. Reference was made to Section 220 also which provides for determination of unlawful gain earned by a person and disgorgement and observed that there are specific provisions in this regard and the proper forum to decide the question was IBBI and not the Adjudicating Authority and (thus, expressing helplessness), Adjudicating Authority observed that the claim of Appellant for restitution was required to be rejected. The Operative Order of Adjudicating Authority Adjudicating Authority then went on to consider what should be done in the matter and in Para - 98 observed and directed:- 98) Now, the question arise as to what is to be done in the present facts and circumstances with regard to the lifting of goods/materials, plant and equipment etc. which have been auctioned and sale certificate has been issued and not yet lifted. As sated earlier, it has been alleged that goods belonging to the applicant has also been lifted whereas the same has been denied by the liquidator. Hence, to avoid any dispute in future the liquidator is directed to allow the lifting of goods after giving due notice of the same to the applicant who shall authorise its representative to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tisgarh. Total 736.23 Acre land including 637.21 Acre Free hold land and 99.02 Acre Leasehold Land. A 80.96 Crore 8.96 Crore 10 Lacs Plant Machinery at plant situated at Raigarh, Chhattisgarh B 23.30 Crore 2.33 Crore 5 Lacs Furniture Fixtures, Office Equipment, Computers at Raigarh Chhattisgarh C 12 Lacs 1.20 Lacs 5,000 Furniture Fixtures, Office Equipment, Computers at Kolkata D 6 Lacs 60,000 5,000 At Page - 306 (Annexure - 9), it is stated that the Asset Information Sheet is Annexure - V, Para - C(3) of Annexure - 9 (Page - 309) states that the e-auction would be conducted in the manner specified in this auction process information document. Now, Annexure - V of the Sale Notice published (Annexure - 9 at Page - 340) gives particulars of the various movable and immovable properties of Block 'A' to 'D'. Relevant for the present discuss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icate of Sale dated 20.05.2019 is seen, Schedule - 1 of the Certificate (Page - 427) shows that above 3 installations which were part of building in Sale Notice, and other items had been sold off to the Respondent No. 2 as Plant and Machinery . 14. We have seen the Reply filed by Respondent No. 1 (Diary No. 17759). The Liquidator appears to have taken a stand that in stakeholders meeting, reserve price had been settled. For this, the Liquidator relies on the stakeholders meeting dated 13th March, 2019. The Reply at Page - 64 has Minutes of that meeting. It can be seen that in this meeting, the Liquidator referred to valuations received in CIRP from Adroit and United Surveyors and the valuation which was conducted by Punjab National Bank (PNB - in short) pre-CIRP, on 22.12.2017. He referred to the Valuers appointed at the time of liquidation and recorded in the Minutes that the Valuers had completed physical verification of assets located at Raigarh, Chhattisgarh, Kolkata and Orissa and had provided Draft Reports of valuation wherein tentative values of assets were provided . He compared those tentative values during valuation done in CIRP and valuation done by PBN before CIR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the observations made by the Adjudicating Authority in Para - 88 of the Impugned Order (reproduced supra), although Adjudicating Authority observed that Section 25(2)(h) of IBC relating to preparation of Information Memorandum and valuation matrix is not applicable to liquidation process and expressed that this would not mean that disposal of assets can be done without having any intelligent criteria being applied for eligibility of bidders. We find that attention of Adjudicating Authority was not drawn to Schedule - 1 of Liquidation Process Regulations which relates to mode of sale and Sub-Clause (3) requires the liquidator to prepare terms and conditions of sale, including reserve price, earnest money deposited as well as pre-bid qualifications if any. Thus, the Regulations required the Liquidator to prescribe pre-bid qualifications. This does not appear to have been done in spite of value and volume of material and thus, with practically one bidder, the auction appears to have been completed of plant and machinery which was in Block 'B'. When the credentials of second bidder did not support it to even deposit 10% EMD (which is returnable), even if it somehow on its ow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fix average for Reserve Price . Conduct of Liquidator 18. In this context, we are taking further note of the conduct of the Liquidator. The Liquidator as RP had received claim of the Appellant in Form 'B' (Annexure - 4) on 13th January, 2018 where the Appellant claimed unpaid sellers' lien over material supplied lying/stored at VPL's Project Site and statutory charge on goods supplied that have been erected and operational dues. We are not told what was done of this Form 'B' during CIRP. At liquidation stage, Liquidator received Form 'C' (Annexure - 5) dated 9.11.2018 with similar claims and operational dues. On 31st December, 2018, Liquidator passed Order (Annexure - 9) provisionally admitting claim of Appellant at Rs. 290,01,85,395/- out of Rs. 664,98,37,221/- and by putting Appellant in order of priority under Section 53(1)(f) of IBC, he rejected the claim of lien/charge or that the Appellant was a secured creditor. Against this, the Appellant filed CA 149 of 2019 to Adjudicating Authority on 17th January, 2019. It was heard on 11th April, 2019 when it appears that fact of already issuing Public Notice of sale was hidden from Appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 429 @ 430) issued by the Appellant to both the Respondents sent by e-mail and courier reminding of its pending claims and details of the developments in litigation and how unknown persons claiming to be representatives of Respondent No. 2 had come to take away plant and machinery from project site claiming that there was Sale Certificate, Schedule of which shows it included Plant and Machinery over which lien/charge is claimed; and that large quantity of Plant and Machinery is removed by them. Appellant claims to have then filed CA 684 of 2019 (Annexure - 15) against the auction on 3rd June, 2019. No proper system put in place by Liquidator On 12th June, 2019, by Order (Annexure - 17 - Page 463), Adjudicating Authority directed that movement of goods, if any, would be subject to the result of the Application. In spite of this, it does not appear that Respondent No. 1 put in place any mechanism for handover/movement of goods and material from the concerned project site. Appellant sent Notice dated 12.07.2019 (Annexure - 20 - Page 522), inter alia, requesting the Liquidator to have process of identifying sequestering the plant and machinery which are lying un-erected within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 1 has filed Reply (Diary No. 17759) and at Para - 17 of Primary Objections, it is mentioned, that it is unclear as to how much material was actually delivered at the site of the Corporate Debtor and only the key managerial personnel of the Corporate Debtor are privy to the same details. In spite of provisions like Section 18(1)(a) and (f) requiring Interim Resolution Professional to collect all information relating to the assets, etc. of the Corporate Debtor and take control and custody of assets for which the Corporate Debtor has ownership rights and provisions like Section 35(1)(b) of IBC providing that the Liquidator shall take into his custody or control all the assets, property, etc. of the Corporate Debtor, we have the present Respondent No. 1 stating that it was unclear as to how much material was actually delivered at the site of the Corporate Debtor. What prevented him from taking stock as per records and physical availability? In Reply (Annexure - 23), Respondent No. 1 claimed that at the site, there was BHEL enclosure, where according to him, illegally and unauthorizedly Guards had been posted by BHEL and that material lying in that enclosure was not part of Sale N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondence exchanged between the Appellant and Respondents between 16.12.2019 and 26.12.2019. Going through the material, it appears that Respondent No. 2 in the face of resistance from Appellant and Respondent No. 2, went ahead to remove further goods/material from the spot. We make reference to some of the correspondence. There is e-mail dated 16th December, 2019 (Page - 920) sent by the Liquidator to Appellant to depute authorized representative. On same day evening at 19.13 hours, Respondent No. 2 appears to have sent e-mail (Page - 922) that Respondent No. 2 has already mobilized their transportation and lifting personnel at the site and await the personnel of BHEL and Liquidator at the site. It shows the hurry of Respondent No. 2. The Appellant by e-mail dated 17th December, 2019 sent to Liquidator sought Notice specifying the exact material proposed to be lifted. Another Notice was sent to Respondent No. 2 also. Liquidator was asking Respondent No. 2 to state what items picked up?? None responsible on spot. Respondent No. 1 sent e-mail dated 18th December, 2019 at 16.49 hours (Page - 932) to NCLT and parties which mentions that the Liquidator had informed the aucti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the purchaser started dismantling and lifting of the material sold to them from the project site of the VISA Power Limited. However, on 05.08.2019 our representative visited the project site and found that the purchaser has also dismantled and removed the following items, having value of approx. Rs. 20 crores, without the permission of the Liquidator from the project site which were not sold to them and the same were not included in the aforesaid list of plant machinery provided to the purchaser. 1. Transmission Towers (Total 26 nos.) -about 19 towers are missing 2. Water Pipe Line (Length of approx. 35 KM) about 10 km of pipeline is missing. Above mentioned movable properties has been removed by the purchaser without any authority and without the consent of the Liquidator. This is a case of illegal removal of above items and the purchaser has committed theft. Based on the facts and circumstances stated to you, I would request you to lodge an FIR against the incident of theft and illegal removal of above mentioned assets from the premises of VISA Power Limited. The above contents are shocking. Record shows that soon after the Certificate of Sale dated 20th May, 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... even lifted the material belonging to BHEL but no FIR or other corrective actions were taken by Liquidator to prevent happening of such event, the Respondent No. 1 retaliated submitting to the Adjudicating Authority that he had already filed FIR. At that stage, the FIR was Annexure - 7 dated 6th August, 2019. If the Liquidator had already filed such FIR, that Respondent No. 2 had already lifted material not sold to the extent of Rs. 20 Crores, still Respondent No. 1 does not appear to have highlighted this to Adjudicating Authority and the Adjudicating Authority also did not go into this Complaint/FIR and in the result, Adjudicating Authority passed above operative Order leading to further undesirable actions at the project site on the part of Respondent No. 2, which we have already discussed. Criminal Actions took place at Project Site 24. A) We have seen Reply in Appeal (Diary No. 17761) of Respondent No. 2 and heard its Counsel, Respondent No. 2 claims to be bona fide purchaser asserting that it was throughout represented to it that assets forming part of auction sale process are unencumbered and upon payment of full consideration it shall have absolute possession. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat happened to the two complaints dated 6th August, 2019 and 19th December, 2019 which he had filed with the SHO. It appears to us that on spot, criminal actions have taken place and they deserve to be properly investigated. Reasons of Adjudicating Authority not to grant relief not maintainable 26. We have already referred in short (see Para - 11(g) supra) the reasons recorded by the Adjudicating Authority in Paragraphs - 91 to 101 as to why cancellation of auction and restitution cannot be ordered. In the face of record as discussed above, and law, we do not find that the reasons recorded by the Adjudicating Authority in Paragraphs 91 to 101 of the Impugned Order can be maintained. When there were Orders dated 12th June, 2019 (Annexure - 17) that movement of goods would be subject to outcome of proceedings , the outcome cannot change only because there was movement of goods. Even if the plant and machinery had been dismantled, that could not have been reason to deny the relief of return of material. The other reason that the Applicant/Appellant was only an Unsecured Creditor and higher proceeds would not go to the Applicant - Appellant was no reason not to cancel the auc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Judgement and Order of the Adjudicating Authority or this Appellate Tribunal can always be basis for the IBBI to consider if there are reasonable grounds and IBBI can definitely look into the same to consider if action under Chapter - VI needs to be taken. We thus set aside reasons and findings recorded in Paragraphs - 91 to 101 in Impugned Order. Reliefs as we grant should have been granted. Appellant cannot be treated as Secured Creditor under IBC 27. The Appellant in Form 'B' and Form 'C' claimed that it has unpaid sellers' lien under the Sale of Goods Act on the material supplied which is lying/stored at Corporate Debtor's project site and a statutory charge under the Transfer of Property Act on the goods supplied that have since been erected. The Liquidator rejected this claim and held that the Appellant was not a Secured Creditor. The Adjudicating Authority also looked into this aspect and in Paragraphs - 21 to 30 referred to the provisions of IBC. It has also looked into the agreement between the parties and the contractual provisions at Paragraphs - 31 to 34 of the Impugned Order and held that the Appellant is not having security interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CA(IB)792/KB/2019 (in Annexure - 18) in CP(IB)574/KB/2017 before Adjudicating Authority of having statutory lien and statutory charge over material supplied lying/stored at Corporate Debtor's project site and material supplied which is/was erected and thus to be Secured Creditor - is rejected. 4) Claim of the Appellant seeking setting aside of auction dated 01.05.2019 in favour of Respondent No. 2 is accepted. Sale Notice (Annexure - 9) dated 10th April, 2019 and further process culminating into auction dated 1st May, 2019 and issue of Certificate of Sale dated 20th May, 2019 (Annexure - 13) in favour of Respondent No. 2, and subsequent lifting of goods/material by Respondent No. 2/its Directors or on their behest are all set aside as illegal. 5) a) Respondent No. 1 shall forthwith recover possession from whoever is in possession and Respondent No. 2, and its Directors are liable and directed to return back at their costs, within 15 days, to the project site, All the material/goods (including goods/material which was made part of Certificate of Sale which we set aside) picked up and transported by Respondent No. 2/its Directors or on their behest, purporting to act as suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nging to the Appellant, (i.e. (1) material/goods other than on which Appellant has been claiming lien/charge; and/or (2) goods/material, other than goods/material supplied by Appellant which was entered in Fixed Asset Register or other records (by whatever name called) and Balance Sheets of the Corporate Debtor) - be returned to the Appellant. 7) Copy of Judgement of the Adjudicating Authority and this Judgement may be sent to IBBI which may consider if actions, if any, are required to be initiated under Chapter - VI of IBC. If Respondent No. 1 - Liquidator, extends full cooperation in carrying out the Orders which we are passing, especially, to get back goods/material of Corporate Debtor and re-auction, IBBI may consider the same as mitigating factor, in favour of Respondent No. 1 in action (if any) under Chapter - VI of IBC. 8) If it appears to Adjudicating Authority that Respondent No. 1 is not cooperating, it would be at liberty to replace him with another person as Liquidator. 9) Appellant will be entitled to be treated under Section 53(1)(f) of IBC for its monitory claim admitted by Respondent No. 1 vide Order (Annexure - 16) dated 3rd June, 2019. 10) C.A. (IB) 68 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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