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TMI Blog2023 (7) TMI 266X X X X Extracts X X X X X X X X Extracts X X X X ..... uidation of Apex Buildsys Limited- Corporate Debtor. b. E-Auction Notice was issued by the Liquidator for sale of the Corporate Debtor as a going concern. After issuance of several E-Auction Notices by the Liquidator, e-Auction Notice was issued on 04th May, 2022 fixing 23rd May, 2022 as date for e-auction. E-auction process information document was also issued inviting bids for auction/sale of M/s. Apex Buildsys Limited as a going concern in its totality along with its employees/workers. c. E-auction document contained various annexures and formats. E-Auction Notice also contained terms and conditions of the e-auction. Prospective bidders were required to make their own independent inquiries regarding the encumbrances, title of assets/properties of the company put on auction as going concern. It is useful to extract clause 2 of Terms and Conditions of the E-Auction which is to the following effect: "The prospective bidders should make their own independent inquiries regarding the encumbrances, title of assets/properties of the company put on auction as going concern and claims/rights/dues/affecting the assets and should conduct their own due diligence prior to submitting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wnership of the Corporate Debtor shall take place by way of writing off the entire existing shareholding of Corporate Debtor and issuance of fresh equity shares to the successful bidder. The shares shall be issued only in the name of the successful bidder and will not be issued in any other name. * The closing date of the transaction shall be 90 days from the payment of the full consideration amount, wherein in these 90 days, all the ancillary processes as mentioned in the Term Sheet shall be executed and implemented by the Liquidator and the bidder. The said executions include but are not restricted to distribution of the purchase consideration to various stakeholders, extinguishment of shares of the Corporate Debtor, issuance of fresh equity shares to the bidder, etc. b. Confirmation of sale: On payment of the 100% of the bid amount, and any applicable GST/Taxes, registration fees, transfer fee etc. the successful bidder shall be issued the letter for confirmation of sale. The confirmation of sale is subject to the necessary approvals and processes, if any, towards various statutory and non-statutory authorities which include but is not restricted to Securities and Exchange ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccordance with law. 3. We have heard Ms. Pooja Mahajan, Learned Counsel for the Appellant and Mr. Abhishek Anand, Learned Counsel for the Liquidator. 4. Learned Counsel for the Appellant submits that Application filed by the Appellant seeking certain reliefs/concessions/directions were necessary to affect the takeover of the Corporate Debtor on clean slate basis. The Adjudicating Authority erred in not granting the said reliefs. The question of settlement of liabilities of the creditors under Section 53 of the Code in case of sale of a corporate debtor in liquidation is a question that ought to be decided by the Adjudicating Authority in the Application filed under Section 60(5)(c ) of the Code. It is submitted that without judicial order, the statutory authorities are not accepting settlement of their claims in terms of Section 53 of the Code. In the present case after passing of the impugned order applicant did approach various authorities for waiver of their liabilities which stood settled in terms of Section 53 of the Code however the Tax Authority informed the Applicant that since the impugned order does not grant any relief, the Appellant should contest the pending tax case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... workers, employees, statutory authorities on account of Income Tax, Sales Tax, GST, Service Tax, DGFT, Excise, Customs etc. are required to be dealt with as per Section 53 of the Code as full and final settlement of their claims. When the process document clearly contemplated such consequences the said consequences shall ensue on sale as going concern and if any roadblocks come into ways of successful resolution applicant, necessary directions, clarifications can very well be issued by the Adjudicating Authority on an Application filed under Section 60(5)(c) of the Code. 8. Further the process document clearly contemplated that transfer of ownership of the corporate debtor shall take place by way of writing off entire existing shareholding of the corporate debtor and issuance of fresh equity shares to the successful bidder. The share shall be included in the name of Successful Bidder and will not be issued in any other name. 9. Learned Counsel for the Appellant has brought on record the letter dated 3rd March, 2023 issued by the State Infrastructure and Industrial Development Corporation of Uttrakhand Limited informing the liquidator that necessary application for transfer of the ..... 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