9911796707
TMI Blog2024 (5) TMI 892X X X X Extracts X X X X X X X X Extracts X X X X ..... n the year 2011 invited bids for Contract CC-18 for design and construction of tunnels at New Delhi and Contract CC-23. (ii) Pratibha Industries Ltd., the Corporate Debtor herein being an Engineering, Procurement and Construction company entered into a Joint Venture Agreement dated 14.03.2012 with FEMC to form FEMC Pratibha JV for the purpose of submission of expression of interest in the tender issued by DMRC and participating in the said tender and executing the aforesaid project. (iii) The JV Agreement came to be amended on 15.03.2012 by First Supplementary Agreement whereby the parties altered their roles and responsibilities and all the roles and responsibilities under the contract fell on Corporate Debtor whereas FEMC was to provide key personnel. (iv) FEMC Pratibha JV submitted bid for CC-18 project on 17.04.2012 and same was awarded by DMRC vide letter dated 19.06.2012. (v) Another Supplementary Agreement was entered dated 01.09.2013 where it was agreed that FEMC would be paid 1.25% of CC-18 GCV as consultancy service fee for providing the requisite technology, support, etc. (vi) By Third Supplementary Agreement dated 28.01.2013, the consultancy fee was renegotiat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ass an order and/or direction that Respondent No.1 refund amount of Rs.32.11 crore to the account of Respondent No.2, held with the Applicant; (b) Pass an order and/ or direction that Respondent No. 1 complete necessary KYC norms to operationalize the aforesaid mentioned account of Respondent No.2; (c) That pending the hearing and final disposal of the said Application, pass an order and/or direction to Respondent No.1 to disclose on oath all bank accounts belonging to Respondent No.2 and details of transactions and transfers made in relation to the amounts of Respondent No.2 since the appointment of Respondent No.1." (xii) An interim order was passed in the I.A. and the Liquidator set aside an amount of Rs.32.11 Crores in pursuance of interim order dated 21.03.2022. (xiii) The application I.A. No.628 of 2022 was opposed by the Liquidator and a reply was filed by the Liquidator. The amount of Rs.32.11 Crores was the amount which was received as VAT refund, which amount was transferred by the Liquidator to the designated bank account of the Corporate Debtor. The application was filed by the Yes Bank praying for reliefs, as noticed above. The Adjudicating Authority after hear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted by Yes Bank, it was clearly noticed that FEMC was only technical partner and all pecuniary liabilities was of the Corporate Debtor and it was the Corporate Debtor who has discharged all VAT liabilities, hence, VAT refund has rightly been submitted by the VAT Department in the account as intimated by the Liquidator to the VAT Authorities. The claim filed by the Yes Bank was without any merit and in the meeting of Committee of Creditors all facts were brought into the notice of all Financial Creditors including the Appellant. The VAT refund was also brought into notice of the Committee of Creditors and no objection of any kind was raised by the Appellant in the Committee of Creditors meeting. It is submitted that the Liquidator has informed in the meeting of Committee of Creditors held on 01.03.2019, no member including the Yes Bank raised any objection with respect to VAT refund. At time of filing of VAT Return, details of account were provided with Bank of Baroda which was subsequently freezed by bank officials on 01.01.2018. The Liquidator opened another bank account in the same bank and intimated the same to the VAT Authorities for processing the VAT refund and on 30.05 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th this Agreement." 8. On responsibility and sharing, the Supplementary Agreement provides as follows: "Responsibility & Sharing If FEMC wishes to act only as Technical Service Partner, then participation of the Parties in the fully integrated Joint Venture shall be re-arranged as given here below and PRATIBHA shall execute the entire defined scope of works given in the tender documents accordingly: a) FEMC : 0% (Zero Per cent) b) PRATIBHA : 100% (Hundred Per cent)" 9. The Second Supplementary Agreement dated 01.09.2012 provided that FEMC would be paid @ 1.25% of CC-18 as consultancy service fee. With regard to consultancy service fee, the agreement provides as follows: "Party of First Part shall pay to the Nominee, a lump sum total "Consultancy Services Fees" (Success Fee) @ 1.25% (One Point Two Five Percent Only) of the Contract Amount. These Fees shall be exclusive of service tax and exclusive of Income Tax payable in India as per applicable laws. The total amount payable by party of First Part to the party of Second Part or its Nominee shall be Rs.13,61,98,750/- (Indian Rupees Thirteen Crore Sixty-One Lakh Ninety-Eight Thousand Seven Hundred Fifty Only) which is cal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere discharged by the Corporate Debtor, hence, the refund made by the VAT Department transferred to the account of Corporate Debtor is in accordance with the rights and obligations of the parties as per the JV Agreement. 13. The Adjudicating Authority in the impugned order has noted the First Supplementary Agreement and Third Supplementary Agreement. The Adjudicating Authority has also further held that Yes Bank having failed to comply with Sub-regulation (2) of Regulation 21A of the Liquidation Regulation, secured assets became part of the liquidation assets. In Para 71, 72 and 73 following has been held: "71. We consider in terms of the Working Capital Consortium Agreement (WCCA), the Applicant inter alia have first ranking pari passu charge over all (1) movable fixed assets of Respondent No. 2 and/or CC-18 Project, both present and future, (ii). current assets of Respondent No. 2 and/or the CC-18 Project, both present and future, and (iii) all bank accounts of Respondent No. 2 including but not limited to the accounts opened for the CC-18 Project, we note that this security was not relinquished in terms of Section 52 of the Code, the Applicant has failed to comply with sub-re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic bank accounts. 2) Tunnel Boring Machine: Exclusive charge on tunnel boring machine 3) E-10 Delhi property: Exclusive charge on E-10, Defence colony, New Delhi along with servant quarter and two parking space. 4) B-85 First Floor property: Exclusive charge on first floor of B-85, defence colony As you opted to realise your security interest on your own, in terms of sub-regulation (2) of Regulatio 21A of the Liquidation Regulations, you were required to pay as much towards the amount payable under clause (a) and sub-clause (i) of clause (b) of the sub-section (1) of Section 53 of the IBC as you would have shared in case you had relinquished your security interest, to the Liquidator within a period of ninety days from the liquidation commencement date viz. the insolvency resolution process costs i.e. CIRP Costs and the liquidation costs paid in full; and workmen's dues for the period of twenty-four months preceding the liquidation commencement date. The details of the CIRP Costs and the Liquidation costs were shared by the then Resolution Professional of the Corporate Debtor with all the members of the Committee of Creditors ("CoC") of the Corporate Debtor including y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) A secured creditor shall inform the liquidator of its decision to relinquish its security interest to the liquidation estate or realise its security interest, as the case may be, in Form C or Form D of Schedule II: Provided that, where a secured creditor does not intimate its decision within thirty days from the liquidation commencement date, the assets covered under the security interest shall be presumed to be part of the liquidation estate. (2) Where a secured creditor proceeds to realise its security interest, it shall pay - (a) as much towards the amount payable under clause (a) and sub-clause (i) of clause (b) of sub-section (1) of section 53, as it would have shared in case it had relinquished the security interest, to the liquidator within ninety days from the liquidation commencement date; and (b) the excess of the realised value of the asset, which is subject to security interest, over the amount of his claims admitted, to the liquidator within one hundred and eighty days from the liquidation commencement date: Provided that where the amount payable under this sub-regulation is not certain by the date the amount is payable under this sub-regulation, the s ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
