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TMI Blog2024 (6) TMI 135X X X X Extracts X X X X X X X X Extracts X X X X ..... Authority') under Section 61 of the Insolvency & Bankruptcy Code, 2016 (in short 'Code') refusing to revise timeline for making balance payments and instead directed forfeiture of the amount already by the Appellant, in case of failure on the part of the Appellant to adhere the timelines. Similarly, the Appellant, in Company Appeal (AT) (Insolvency) No. 443 of 2022 challenged the Impugned Order 29.06.2022, whereby the Adjudicating Authority directed to forfeiture the entire amount paid by the Appellant on any deviation from timeline set up by the Adjudicating Authority. 2. The Respondent in both the Appeals is Mr. Ramakrishnan Sadasivan, Liquidator of Surana Industries Limited (in short 'Corporate Debtor'). 3. The Appeals were heard by the Bench consisting of Hon'ble Mr. Justice M. Venugopal, Member (Judicial) and Hon'ble Ms. Shreesha Merla, Member (Technical) of this Appellate Tribunal. However, they have passed two different Impugned Orders dated 20.10.2023. Since, there was difference of opinion between the Member (Judicial) and Member (Technical), this matter was placed before the Hon'ble Chairperson for guidance, whereby the Hon'ble Chairperson directed to list this matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it was decided to sale the Raichur Assets at the scrap value of approximately Rs. 50 Crores and the same was communicated to the Creditors at Stakeholders Meeting held on 31.07.2021 . 8. It is the case of the Appellant that during this period, he came to know about the Raichur Assets and being interested in these assets, the Appellant made an offer of more than twice the amount of scrap value i.e., Rs. 105.21 Crores on 09.09.2021. 9. At this stage, we also note that the liquidation value of Raichur Assets based on valuation done in December, 2018 was Rs. 338.01 Crores which was reduced in the Second valuation done on August, 2019 to Rs. 227.31 Crores and finally the liquidation value was further downgraded in third valuation done in August, 2020 to Rs. 117.23 Crores. As noted earlier, since no acceptable bids were received, the scrap value was determined as Rs. 50 Crores. 10. The Stakeholder's Consultation Committee (in short 'SCC') in its 9th Meeting dated 15.09.2021 agreed to sale the Corporate Debtor as a going concern to the Appellant for a sale consideration of Rs. 105.21 Crores. 11. The Appellant submitted that he was to invest Rs. 40 Crores by way of equity infusion an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt for a sale consideration amounting to Rs. 105.21 Crores. A copy of the minutes of the 9th Meeting of the Stakeholders is annexed herewith as ANNEXURE A8. 16. The Respondent has also deposited an amount of 10% of the sale consideration amounting to Rs. 10.521 Crores as a Commitment Advance prior to the filing of this application and had agreed to remit the balance sale consideration within 15 days of approval of the proposal by this Hon'ble Tribunal. It was made clear to the Respondent that the receipt of the Commitment Advance was in no way a final acceptance of the proposal and it was received without prejudice to any terms or conditions as may be stipulated by this Hon'ble Tribunal. The Commitment Advance shall be forfeited if the applicant is found to be ineligible under Section 29A of the IBC (as amended from time to time) or is found to have made a false or misleading declaration of eligibility under Section 29A of the IBC (as amended from time to time). Further, the Commitment Advance shall also stand forfeited if the Respondent fails to complete the acquisition of the Corporate Debtor upon approval being afforded by this Hon'ble Tribunal or if the Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall be coupled with a grace period of 15 days extended till 30th May, 2022. Mr. Drabesh Jha expressed his sincere thanks to the members for the patient co-operation extended so far in the process and requested the members to place reliance on the buyer, since maximum efforts are being made to complete the Process before 30th April, 2022 Only as a measure of prudence, and factoring any unforseen circumstances the maximum timeline is being extended till 30th May, 2022. Interest on delayed payments: The prospective buyer also agreed that all payments made post 15th April, 2022 shall be coupled with payment of interest charged at the rate of @ 12% P.A." (Emphasis Supplied) 19. As per above, for the payment of entire money of Rs. 105.21 Crores, the Appellant submitted that the maximum time limit was to be extended upto 30.05.2022, keeping in view the unforeseen circumstances. Further it was decided to levy interest on delayed payment @12% per annum. 20. It has been brought out that based on the decision taken in the 10th SCC Meeting, the Appellant filed the application bearing I.A (IBC)/512 (CHE)/2022 before the Adjudicating Authority seeking revision in the timelines for pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Applicant is directed to strictly comply with the said timelines. Any deviation from the same would amount to forfeiture of the entire amount paid by the Applicant" (Emphasis Supplied) 25. The Appellant submitted that he filed separate appeal assailing the said order of the Adjudicating Authority dated 29.06.2022 which inter-alia provided for forfeiture of entire amount paid by the Appellant. In this connection, the Appellant pointed out that by this time he has already paid Rs. 36.8 Crores including an upfront payment of commitment advance of Rs. 10.52 Cores. 26. The Appellant pleaded that he was making all efforts to make the balance payment, however, he came to know that the Enforcement Directorate (in short 'ED') had contemplated action against the former Directors of the Corporate Debtor and were contemplating attaching some of the assets of the Corporate Debtor. The Appellant also came to know that the Directors of the Corporate Debtor were arrested for alleged fraud of Rs. 3986 Crores. 27. The Appellant stated that in view of these uncertainties, the Appellant filed an application bearing I.A. No. 826 of 2022 on 29.06.2022 before the Adjudicating Authority seeking im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied timelines. * All the other lenders present also concurred with the views of IDBI Bank. * The lenders stated that time and again the buyer is coming up with a reason for extension of time and at the verge of completion of the extended period, a further extension is sought. This keeps on repeating and there is no certainity regarding the completion of the entire payment. There is no concrete proposal or timeline from the buyer's side which doubts the intention of fulfilling the payment obligations. * Moreover the extended Liquidation Period is about to come to a closure on 2nd October, 2022 based on the NCLT Order dated 9th June, 2022. So hardly 2 months is left for completion of the sale process. Based on the pattern followed by the buyer in the recent past, there is no surety that they will honour their payment obligations even if an extension is provided. * Thus members stated that in due adherence to the NCLT Order and based on the inactions/inabilities of the buyer expressed in the recent past it appears desirable to forfeit the entire amount paid by the RA and go for a fresh auction in a couple of days. * Having provided their contentions, the Stakeholders directe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er is as follows:- (i) "The Applicant is directed to pay in or before 30.06.2022 the balance 50% of the sale consideration le. 34.60 Crore with 12% interest from 15.04.2022 till the date of payment. (ii) The remaining sum of Rs.34.60 Crore shall be paid on or before 31.07.2022 with 12% interest from 15.04.2022 till the date of payment. (iii) The Applicant is directed to strictly comply with the said timelines. Any deviation from the same would amount to forfeiture of the entire amount paid by the Applicant This order was accepted by applicant but did not follow the payments terms. 8. It is reported that the Applicant/successful bidder has made a total payments of only Rs.37.80 Crores on different dates as under :- SL. No. DATE OF PAYMENT AMT. (RS. IN CRORES) 1 Commitment Advance (Paid along with the submission of Proposal) 10.52 2 On 12th April 2022 5.00 3 On 15th April 2022 1.50 4 On 18th April 2022 9.28 5 On 20th May 2022 2.00 6 On 9th June 2022 1.50 7 On 14th June 2022 1.50 8 On 17th June 2022 5.00 9 On 13th July 2022 0.50 10 On 25th July 2022 1.00 TOTAL 37.80 9. Thus, it could be seen that the Applicant / successful bidder ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here is no proper explanation from the Learned Senior Counsel except the Enforcement Directorate press note. 15. We also called upon the Learned Senior Counsel Mr. Virender Ganda to state whether in this Application, is there any documents placed on record to show the bonafide of this Applicant as to whether he is having the capability or capacity to pay the entire balance amount of approx Rs.95.00 Crores, which should have been paid on or before 15.04.2022 or during the time as extended vide order dated 29.06.2022. To this the Learned Senior Counsel has stated that no such document is filed and if at all required, he is willing to file the same. 16. The further query raised by this Bench to the Senior Counsel Mr. Virender Ganda as to whether any proceeding have been initiated by the Enforcement Directorate to the best of applicant's knowledge that would affect the property under sale as on today, to which, he referred to some statements of the Liquidator made earlier to 04.08.2022. 17. In the above factual matrix at the instance of the Senior Counsel Mr. Virender Ganda appearing for the Applicant/Buyer, we called upon Mr. T.K. Bhaskar, the Learned Counsel appearing for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uidator has to only implement the Tribunal Order as a consequence. Hence, we find no merit in the plea to set aside the letter dated 02.08.2022. Prayer (a) is rejected. 21. The Applicant dithered in making payment because of certain news going around in the market that Enforcement Directorate has initiated action against the Corporate Debtor. The same is not a ground for non- payment because, it was private sale and at the time of sale, the Applicant purchased the property of the Corporate Debtor under liquidation with open eyes. He is responsible for due diligence. In any event he has been paying amounts in dribble and that clearly established applicants inability to pay as undertaken. Hence, no case has been made out for any relief main or interim. 22. Applicant has consciously sought extension of the time for payment. An order has been already passed by this Tribunal on 29.06.2022 on terms, it has become final. Therefore, no further relief of extension of time can be granted unless the order dated 29.06.2022 is set aside. The applicant accepted the order dated 29.06.2022 without demur. Applications filed again and again to extend time for payment will defeat the object of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2016. 41. The Appellant attempted to present his case that in none of these documents or SCC Minutes, the word 'forfeiture' appeared except with reference to clause 9, proposal of the Appellant which provide for forfeiture of amount deposited as 'Commitment Advance' in case of failure of the Appellant to adhere the timelines. 42. The Appellant further submitted that on 13.04.2022. 10th SCC Meeting granted the extension of timelines for submitting the balance payment till 30.05.2022 and in the same meeting no discussion took place regarding forfeiture of the money paid by the Appellant and the Appellant subsequently filed an IA (IBC) 512 (CHE)/ 2022 before the Adjudicating Authority seeking extension of time, however, no prayer was made regarding forfeiture but the Adjudicating Authority in its order dated 29.06.2022, disregarding commercial wisdom aspect of SCC, on its own, imposed the condition regarding forfeiture of the amount paid in the case of failure by the Appellant to comply with the timelines. 43. Thus, it is the case of the Appellant that the forfeiture was never contemplated between either of the parties i.e., Stakeholders or the Respondent and clearly the Adjudicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of the IBC and borrowing a leaf from Committee of Creditors of Essar Steel India Limited v. Satish Kumar Gupta and Others, they cannot act as a Court of equity or exercise plenary powers to unilaterally reverse the decision of the Liquidator based on commercial wisdom supported by the stakeholders." ( Emphasis Supplied ) 48. The Appellant further pleaded that there is no provision of forfeiture in the Code during liquidation and the Impugned Order is therefore is against the principle of interpretation of a statute and cited the judgments of Hon'ble Supreme Court of India in the matter of Union of India & Anr. v. Hansoli Devi & Ors., (2002) 7 SCC 273, where following was held :- "If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves alone so, in such case, best declare the intention of the lawgiver." The Appellant submitted that similarly, in the case of Raghunath Rai Bareja & Anr. v. Punjab National Bank & Ors., (2007) 2 SCC 230, it was held that :- "The other rules of interpretation e.g. the mischief rule, purposive interpreta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act must agree to stipulate a term in the contract in that behalf. A fortiori, if there is no stipulation in the contract of forfeiture, there is no such right available to the party to forfeit the sum." 51. It is the case of the Appellant that he made the payment of Rs. 37.8 Crores which is more than 30% of the sale consideration as he was genuine purchaser and only due to unforeseen reasons he could not make the balance payments and in this regard certain payments were made by him on 13.07.2022 and 25.07.2022, admittedly after the pronouncement of the Impugned Order dated 29.06.2022, on the good faith basis which was accepted by the Respondent without any reservation about the acceptance of the money and therefore the plea of his deemed acceptance of the Impugned Order dated 29.06.2022 cannot be accepted. 52. The Appellant submitted that the forfeiture made by the SCC, tantamount to unjustified enrichment which is not permitted in view of the several judgments of the Hon'ble Supreme Court of India and Hon'ble High Courts. The Appellant cited the case of Kailash Nath Associates vs. Delhi Development Authority and Another. (2015) 4 SCC 136 and the relevant portion of this judgmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the Appeals, treating these as misleading, mischievous and without any merit. 56. The Respondent submitted that the Appeals have become infructuous since the sale of the Corporate Debtor has been confirmed in favour of Successful Bidder i.e., Texcon Steels Ltd. for Rs. 145.38 Crores, who has already paid the entire money on 28.11.2022 and subsequently sale certificate along with the tax invoice, delivery chalan have been issued to him on 30.11.2022. 57. The Respondent assailed the conduct of the Respondent who sought extension of timelines to make payment and the same was discussed in 10th SCC Meeting held on 13.04.2022 where SCC categorically stated that they were not able to consider the same as the sale itself has been approved by the Adjudicating Authority in terms of Section 32(2)(d) of the Liquidation Regulation, 2016. 58. The Respondent stated that the Appellant himself filed an I.A/512/2022 seeking extension of timelines for payment on 28.04.2022. The Respondent submitted that the Adjudicating Authority passed the order wherein the Appellant was given suitable timelines up to 30.06.2022 along with 12% interest from the stipulated dates and imposed the condition regar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant made payments of Rs 1.5 Cr as on 25.07.2023 pursuant to the Impugned Order dated 29.06.2022, thus accepting the order the Adjudicating Authority. The Appellant though filed an appeal challenging the order dated 29.06.2022 before this Appellant Authority on 13.08.2022, did not pursue to same until 24.01.2023 i.e. for around 6 months before this Appellate tribunal. Instead, the Appellant continued to file Application bearing IA 826 of 2022 (26.07.2022) and subsequently SR No. 3305118016882022 (04.08.2022) seeking extension of time before the Adjudicating Authority and suppressed the fact about filing the writ before the Hon'ble High Court of Madras on 05.09.2022, to avoid the forfeiture instead of arranging payments for balance sale consideration. The Respondent alleged that the Appellant is trying to indulge in forum shopping. 64. The Respondent submitted that it is well settled law that the person cannot be permitted to take benefit of one part of the Impugned Order and dispute the other par of the same order. Elaborating this principle, the Respondent stated that the Appellant cannot be permitted to take benefit of the portion of the Impugned Order dated 29.06.2022, whereb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the judgment of this Appellate Tribunal where similar position was upheld in the case of Westcoast Infraprojects Private Limited Vs. Ram Chandra Dallaram Choudhary Company Appeal (AT) (Insolvency) No. 1258 of 2022. 72. The Respondent, denied that there has been undue enrichment at the cost of the Appellant and stated that although finally assets of the were sold at Rs. 145.38 Crores, however, this is also much lower than their outstanding dues to the Corporate Debtor. The Respondent submitted that in fact the original liquidation value of December, 2018 Rs. 338.0 Crores which was more than the double then even offer received and sold now and as such the submission of the Appellant are out of context and not maintainable. The Respondent stated that mere fact that finally auction sale amount was more than the Appellant's bid does not hold that forfeiture is not permissible. 73. The Respondent cited the Judgement of Hon'ble Supreme Court of India Authorised officer State Bank Of India Vs. C. Natarajan & Anr. Civil Appeal No. 2545/2023 where it was held that subsequent sale which is of greater value cannot be a ground to return the forfeited amount in case of default on account of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llants. (viii) Whether, the filing of the Writ Petition by the Appellant before the Hon'ble High Court of Madras and not disclosing before the Tribunal/ Appellate Tribunal was concealment of information by the Appellant. (ix) Whether, the Appellant could take benefit of approbation and reprobation particularly in following the order of the Adjudicating Authority dated 29.06.2022 in I.A. No. 512 of 2022 in accepting the extension of time but refuting the forfeiture clause of the same order. (x) Whether the payment of two tranches of payments made by the Appellant on 13.07.2022 and 25.07.2022 after passing of the Impugned Order dated 24.06.52022 tantamount to acceptance of the Impugned Order dated 29.06.2022. 78. The controversy is regarding private sale as contained in Regulation 33 (1) and 33(2) of the Liquidation Regulations, 2016. Therefore, it is desirable to go into details of Regulation 33 which reads as under :- "33. Mode of sale.-(1) The liquidator shall ordinarily sell the assets of the corporate debtor through an auction in the manner specified in Schedule I. (2) The liquidator may sell the assets of the corporate debtor by means of private sale in the manner sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of liquidator or the Stakeholder Committee and were required to be approved by the Adjudicating Authority. ➢ We note that I.A. No. 997 of 2021 was filed by the Respondent under Regulation 33(2)(d) of the Liquidation Regulation, 2016 seeking approval of sale of the Corporate Debtor as a going concern as a means of private sale to the Appellant, in term of bids submitted by the Appellant on 09.09.221. In this connection, the heading of the I.A. No. 997 of 2021 reads as under :- "Application under Section 60(5) of the Insolvency and Bankruptcy Code, 2016 Read with Regulation 32(e) Read With Regulation 33(2)(d) of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016" (Emphasis Supplied) ➢ Similarly, we also note that the Appellant wrote a letter dated 02.09.2021 to the Respondent for purchasing assets of the Corporate Debtor and the relevant para by which he requested the concessions to be approved by the Adjudicating Authority is reproduced as under :- "The Applicant further submits that Tribunal is empowered to grant necessary reliefs in relation to the Corporate Debtor, sold as a "going concern under the provisions of the Liqu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in I.A. No. 997/CHE/2021 in TCP/95/CHE/2017 on 22.09.2021 before the Adjudicating Authority for seeking extension of time up to 31.05.2022 and in the same application while noting the brief facts of the case in Part 5 of the said I.A. No. 997/CHE/2021, the following was mentioned by the Appellant :- "The Liquidator had filed the application being I.A. No. 997/CHE/2021 seeking approval of the sale of the Corporate Debtor as a going concern under Regulation 32(e). 33(2)(d) of IBBI (Liquidation Process)." ( Emphasis Supplied ) ➢ In view of all above submissions and records of both the Appellant and the Respondent, it is clear that the approval of sale on private sale basis was subjected to Regulation 32(2)(d) and not 33(2)(c) as claimed by the Appellant. 79. Now we will examine whether, the Indian Contract Act, 1872 would be applicable for private sale or the private sale would be covered as per provisions of the Code r/w Liquidation Regulation, 2016. ➢ It is the case of the Appellant that the Appellant submitted that after persistent failure of the Respondent to sale the assets of the Corporate Debtor, the Appellant made a suo-moto offer which was accepted by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng. It is also noted that the Appellant later sought extension of time which is also considered in the 10th SCC Meeting. However, in the 10th SCC Meeting, the Stakeholders were dissatisfied with the attitude of the Appellant regarding seeking extension of time and categorically stated that the same was not within their power. ➢ We observe that subsequently an application bearing I.A. No. 512 of 2022 was filed by the Appellant himself for seeking extension of time from the Adjudicating Authority. ➢ In this background, keeping in view the failure of the Appellant to adhere to the original timelines, the Adjudicating Authority while extending the timelines as sought by the Appellant, also imposed the condition of forfeiture in case of failure of payment by the Appellant within the stipulated time frame. It ned to be appreciated that the Impugned Order was dated 29.06.2022 and forfeiture claims, if at all, was to be applicable only if the Appellant failed to made payment by 31.07.2022. Thus, additional 33 days period was granted by the Adjudicating Authority to the Appellant to make payment. This condition was not applicable, if the Appellant would have payment by fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce, it is not really material whether finally the auction value was more than the amount proposed by the Appellant and in true sense they have not been any alleged undue enrichment by the Stakeholder at the cost of the Appellant. The basic fact is that the Appellant was to pay money as per his offer as accepted by the SCC, which he could not do. The Appellant approached the Adjudicating Authority for extension of time, which was also considered and approved by the Adjudicating Authority, however, the Adjudicating Authority found reasonable to impose the condition of forfeiture in the Impugned Order dated 29.06.2022, only if the Appellant failed to make the payment even in the extended timelines. The same was accepted by the Appellant and paid two more instalments subsequent to the date of Impugned Order. Finally, the Appellant could not pay within the timeline and SCC, acting on the judicial order of the Adjudicating Authority forfeiting money. ➢ In this background, we do not find any merit in the argument of the Appellant regarding undue enrichment by the SCC at the cost of the Appellant. ➢ In this connection, we would like to refer to the Judgement of the Hon'bl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bitrariness or unreasonableness in the decision making process has had the effect of vitiating the order under challenge. However, in course of such scrutiny, the tribunals/courts must be careful and cautious and direct their attention to examine each case in some depth to locate whether there is likelihood of any hidden interest of the bidder to stall the sale to benefit the defaulting borrower and must, as of necessity, weed out claims of bidders who instead of genuine interest to participate in the auctions do so to rig prices with an agenda to withdraw from the fray post conclusion of the bidding process. In course of such determination, the tribunals/courts ought not to be swayed only by supervening events like a subsequent sale at a higher price or at the same price offered by the defaulting bidder or that the secured creditor has not in the bargain suffered any loss or by sentiments and should stay at a distance since extending sympathy, grace or compassion are outside the scope of the relevant legislation. In any event, the underlying principle of least intervention by tribunals/courts and the overarching objective of the SARFAESI Act duly complimented by the Rules, which a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for extension of time as well as the exact terms of the order passed on such application, however, is not available on record. We shall proceed on the premise that the prayer for extension of time was not granted. The order of the Authorized Officer dated 24th October, 2017 forfeiting 25% of the sale price was also not challenged by the contesting respondent before the DRT in any independent proceeding; on the contrary, after the DRAT granted permission to the Authorized Officer to conduct sale afresh by its order dated 12th December, 2017 and pursuant whereto a fresh e-auction notice was issued on 18th December, 2017***" ( Emphasis Supplied ) ➢ From above Judgement of Hon'ble Supreme Court of India, it is clear that the Court/Tribunal should not be swayed by fact that subsequent auction was made at higher bid amount and should not normally interfere in such process including forfeiture. ➢ During final pleadings the Respondent brought to our notice, the latest judgement of Hon'ble Supreme Court of India in case of the The Authorised Officer, Central Bank of India vs. Shanmugavelu in Civil Appeal No(s). 235-236 of 2024 in support of his case on undue enrichment. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount payable by way of damages, the party complaining of a breach can receive as reasonable compensation such liquidated amount only if it is a genuine pre-estimate of damages fixed by both parties and found to be such by the court. In other cases, where a sum is named in a contract as a liquidated amount payable by way of damages, only reasonable compensation can be awarded not exceeding the amount so stated. Similarly, in cases where the amount fixed is in the nature of penalty, only reasonable compensation can be awarded not exceeding the penalty so stated. In both cases, the liquidated amount or penalty is the upper limit beyond which the court cannot grant reasonable compensation. 43.2. Reasonable compensation will be fixed on well-known principles that are applicable to the law of contract, which are to be found inter alia in Section 73 of the Contract Act. 43.3. Since Section 74 awards reasonable compensation for damage or loss caused by a breach of contract, damage or loss caused is a sine qua non for the applicability of the Section. 43.4. The Section applies whether a person is a plaintiff or a defendant in a suit. 43.5. The sum spoken of may already be paid o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng recovered the entire debt amounts to unjust enrichment or not? It would be apposite to understand what is meant by 'unjust enrichment'. 110. This Court in C. Natarajan (supra) had held that forfeiture of 25% of the deposit does not constitute as an unjust enrichment with the following relevant observations being reproduced below: - "35. In the light of guidance provided by the above decisions, what needs to be ascertained first is whether the Bank received or derived any benefit or advantage by forfeiture of 25% of the sale price. We do not think that the Bank has been enriched, much less unjustly enriched, by reason of the impugned forfeiture. Receipt of 25% of the sale price by the Bank from the contesting respondent was not the outcome of any private negotiation or arrangement between them. It was pursuant to a public auction, involving a process of offer and acceptance, and it was in terms of statutory provisions contained in the Rules, particularly rule 9(3), that money changed hands for a definite purpose. Receipt of 25% of the sale price does not constitute a benefit, a fortiori, retention thereof by forfeiture cannot be termed unjust or inequitable, so as to attract ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s beyond the stipulated period. The minutes further recorded regarding jurisdiction of the Adjudicating Authority to consider and allow appropriate extensions as to be sought by the Appellant. The lenders also expressed in above minutes their dissatisfaction for seeking extension of timelines by the Appellant till 30.06.2022 since the period was found to be long period and also stated that the sale may itself result into cancellation. ➢ We note that last item discussed "further course of actions" and under this heading the Appellant stated that the Appellant shall file an application with the Adjudicating Authority seeking approval of extended timelines of payments and requested that during pendency of the application being filed by the Appellant before the Adjudicating Authority, the instalments paid by the Appellant should not be distributed by the Liquidator and should be distributed only on approval by the Adjudicating Authority and this limited request was concurred by the lenders present in the meeting. ➢ After perusal of the minutes it becomes quite obvious that lenders did not concur with the extension of timeline proposed by the Appellant for which the Ap ..... 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