TaxTMI 
TaxTMI 
2021 (4) TMI 993
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....e moveable assets and/or aluminium scrap materials lying in the factory premises of the Corporate Debtor (In liquidation). b) Declaration that the moveable assets and/or scrap materials including the aluminium scrap materials lying in the factory premises of the Corporate Debtor (in liquidation) does not form part of Block No. 1 of the Schedule of Assets of the Corporate Debtor (in liquidation); c) Injunction restraining the Liquidator, Rachna jhunjhunwala and/or her men, agents and/or assigns from parting with possession and/or transferring and/or disposing of and/or alienating the scrap materials and/or immovable including the aluminium scrap materials lying in the factory premises of the Corporate Debtor (In liquidation) to any third parties and/or the erstwhile promoters of the Corporate Debtor and/or its sister concerns. d) An order directing the Liquidator, Rachna Jhunjhunwala to forthwith allow the Applicant to remove all assets forming part of Block No. 2 (including all scrap materials) in the Schedule of Assets lying at the premises of the Corporate Debtor (in liquidation); e) An order of injunction restraining the Liquidator, Rachna Jhunjhunwala and/or her men, se....
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....eous scrap material lying in the yard outside different shops". 6. Mr. Joy Saha, Ld. Sr. Counsel submitted that it is this scrap that is the nub of the matter. At page 86 of the application a copy of the clarification issued by the Liquidator has been placed. Vide this clarification dated 16.01.2020 in para 2 thereof it has been stated as follows. "Above mentioned block of assets refers to Plant & Machinery including its accessories, electrical, piping & related equipment, furniture, office equipment and miscellaneous scrap material lying in the yard outside different shops only. (Refer page 17, & 18 of tender document)." 7. At page 92 of the application in I.A. No. 1081/KB/2020 is an e-mail dated 5th October, 2020 written by the Liquidator to the applicant herein in directing them not to shift or remove any asset lying at the said factory site not bidden for by the applicant in the e-auction and not "sold to them and also refrain from doing any act and compelling the Liquidator to take befitted action against them including seeking intervention of NCLT". 8. Mr. Joy Saha submitted that the question is whether the Liquidator could really prevent the applicant from taking the sa....
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.... on 01.01.2019. The Liquidation order was on 19.07.2019. Therefore, on the day that the addendum is supposed to have been executed, the liquidation order was already in force. Therefore, the sentence in the addendum "in the event of liquidation", was quite redundant. 12. Mr. Joy Saha submitted that Rishabraj Logistics Limited is represented in these proceedings by Rishab Mansinghka, son of Rajendra Mansinghka so they are not total strangers to the proceedings. Referring to page 69 of the application Mr. Joy Saha submitted that there is a memorandum of understanding in which the Corporate Debtor is represented by Director Md. Shahabuddin while Rishabraj Logistics Limited is represented by Mr. Rajendra "Raju" Mansinghka. This is the same person whose name is referred to at page 65 of the I.A. 1060/KB/2020 and his name has been added to the letterhead of the Corporate Debtor. Further, no payment of rent is envisaged by Rishabraj Logistics Limited to the Corporate Debtor for keeping the aluminium scrap at the premises of the Corporate Debtor. Only out of pocket expenses towards electricity, sweepers expenses, security guards, labour charges etc., are envisaged to be paid. Mr. Joy Saha....
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....ically drew our attention to the fact that the description of the goods sold to the successful Auction Purchaser included miscellaneous scrap materials lying in the yard outside different shops. He also specifically drew our attention to item No. 2 which stated that "any assets lying at any premises/property of the Corporate Debtor and not part of the liquidation estate shall not be covered in any block under these documents and not be available for sale. Mr. Chowdhury drew our attention to a letter dated 9.3.2020. 16. During the course of pre-bid visit to site and subsequently on number of occasions of post auction discussions with the representative of the successful auction purchaser it was clearly mentioned that certain aluminium scrap lying in the yard outside different shops shall not be made available for sale. In fact complaint was also made to the police and other authorities to prevent the successful auction purchaser for taking away the aluminium scrap. 17. Countering Mr. Joy Saha's allegation that valuation report was not part of the report, Mr. Jishnu Chowdhury, Ld. Counsel submitted that the valuation report was placed before this Adjudicating Authority as part ....
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....It is rather incredulous that aluminium scrap that was imported under invoice No. 0010/HKG/IND-CC dated 29.01.2015 did not contain any identification marks even though it may have passed through several ports. However, upon verification of the said invoice, placed at page 12 of the Supplementary Affidavit dated 13.01.2021 filed on 19.01.2021 it is seen that there are distinctive identification marks on the carton/container, as follows - "MRKU 4474911," "Seal No. 0087915," and "BL No. 952885177." Rishabraj Logistics Limited has, failed to establish, at this stage that the goods in question were the same Aluminium Scrap imported under invoice No. 0010/HKG/IND/-CC dated 29.01.2015, referred to at page 12 of the Supplementary Affidavit. 22. In so far as the Special Officer's report is concerned, his brief was very clear - he was to oversee the unloading of the scrap that already stood loading on the trucks within the Corporate Debtor's premises. Therefore, he should not have stated with certainty in his report that "earlier godown from where the goods were originally taken up, the shutters were not working properly". He could not have known from where the goods were taken out ....