TaxTMI 
TaxTMI 
TaxTMI 
2019 (10) TMI 1497
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....ch had been sold under SARFAESI Act, 2002, prior to the CIRP commencement date are payable by the purchaser of Unit-1 or the same continue to be admissible against the Corporate Debtor. The RP had initially arrayed three respondents. The Respondent No. I is Rashtriya Anil Steel Majdoor Sangh representing the workmen. The Respondent No. 2 is Tarun International Ltd. which is a purchaser of the said Unit No.-1. The Respondent No. 3 is the Allahabad Bank which has sold the Unit No.-l of the Corporate Debtor under the SAMAESI Act, 2002 to the Respondent No. 2. The Respondent No. 4 is subsequently impleaded which is Prudent ARC Ltd., the largest Financial Creditor of CoC holding approximately 74.31 per cent of the voting share. The said Respondent No. 4 was impleaded vide the order of this Tribunal dated 04.04.2019 in IA No. 35lJPP J20l9. Subsequently, the Respondent No. 5, Mr. Rajendra Sharma representing 77 former employees of the Corporate Debtor and making a claim of Rs. 5,44,36,8321- was also impleaded vide order of this Tribunal dated 24.09.2019 in IA No. 2l3/JPR/20I9. 2. This Tribunal vide order dated 05.03.2018 admitted the Company Petition i.e. CP No. (IB) 35(ND)2018 filed un....
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....he said letter. The said letter dated 07.12.2017 is annexed as Annexure A-9 by the applicant in the application. 6. The Allahabad Bank i.e. the Respondent No. 3 vide its letter dated 21.12.2017 accepted the offer of Respondent No. 2 on the several conditions and addressed in the said letter as follows: - a. That you have deposited Rs. 2,74,00,000/- (Rupees Two Crores Seventy-Four Lacs Only) with regard to your offer for purchase of the abovementioned assets as earnest money. b. That you shall deposit immediately 25 %o of your tender /bid amount i.e. Rs. 4,16,25,000/- (Rupees Four Crores Sixteen Lac Twenty-Five Thousand Only) after adjusting the earnest money, i.e. Rs. 2,74,00,000/-, failing which the earnest money deposited by you shall be forfeited by Allahabad Bank without any further notice. c. That you shall deposit balance 75 % of your tender /bid amount within l5 days after the confirmation of offer i.e. by 05.01.2018, failing which the amount deposited by you shall be forfeited by Allahabad Bank without any further notice. d. That property Asset is sold on " as is where is basis as is what is basis whatever there is basis "" e. That all cost, charges and exp....
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....tor vide its letter dated 26.12.2017 informed the Regional Labour Commissioner that Allahabad Bank had already taken the possession of the Unit No. -1 and the entire property i.e. Unit No.- I of the Corporate Debtor is auctioned by the Allahabad Bank i.e. the Respondent No. 3 on 21.12.2017 and that the property had been sold to M/s Tarun International Ltd. It was further informed that the Allahabad Bank has instructed M/s Tarun International Ltd. to clear all labour dues as mentioned in the notices issued by the Regional Labour Commissioner dated 23.11.2017, 07.12.2017 and 14.12.2017 regarding non-payment of wages and other unknown dues on any of the workers of the Corporate Debtor. A copy of the said letter dated 26.12.2017 is annexed by the applicant and marked as Annexure A-11 in the application. 8. Pursuant to the receipt of sale consideration the Allahabad Bank issued the Sale Certificate in respect of Unit-l to the Respondent No. I on 09.12.2018. A copy of the Sale Certificate is annexed as Annexure A- 12 to the application. 9. Learned counsel for the RP submits that pursuant to the order of this Tribunal dated 05.03.2018 and the public announcement in Form-A dated 09.03.....
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....ntended that, the CoC accordingly discussed and deliberated upon the same and decided that the same being a question of law and facts which can only be decided by this Tribunal. Accordingly, the CoC decided to instruct the Rp to file an appropriate application before this Tribunal for determination of question of law and also facts as to whether in view of terms of sale of Unit No. 1 of the Corporate Debtor under the provisions of SARFAESI Act, 2002, the certain liabilities in respect of Unit No. 1 notified to the bidders in terms of sale including liabilities in respect of employees/workmen of Unit No. 1 are payable by the buyer of the Unit No. I or the same continues to be admissible as claim against the Corporate Debtor. A copy of the minutes of fourth meeting of the CoC date d 17 .08.20 I 8 is filed as Annexure A- 15 to the application. 12.In the meantime, as 1 80 days of CIRP were to expire on 02.09.2018, the applicant herein filed an application being IA No. l6/JPR/2018 before this Tribunal seeking extension of 90 days for the CIRP beyond 02.09.2019. This Tribunal vide order dated 30.08.2018 extended the CIRP by 90 days. 13.In view of the above facts and circumstances, th....
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....lating to the said immovable property being put to auction/sale and also all other liabilities of the Corporate Debtor and it has nothing to do with these liabilities and it is further contended that there is no question of Law involved and the purchaser cannot be fastened with any kind of liability. The Respondent No. 2 has brought to the notice of this Tribunal following judgements in support of its contention: - a. The Judgement of the Hon'ble High Court of Madras in Raja Gopal Vs. Raji and Others reported in20l9 SCC Online MAD 733, b. The Judgement of the Hon'ble High Court of MP dated 25.07.2016 in Writ Appeal No. 35112011(State of MP and others Vs. M/s Bhagwan Motors Pvt. Ltd. and Anr.), c. The Judgement of the Hon'ble High Court of Bombay Bench at Aurangabad in WP No. 235512011 dated 04.12.2018 (Maharashtra States Co-operative Bank Vs. Gangapur Sahakari Sakhar Karkhana Ltd.), d. Another Judgement of the Hon'ble High Court of Bombay in WP No. 1796 of 2015 dated 07.03.2017 (Axis Bank Ltd. Vs. State of Maharashtra and others), e. The Judgement of the Hon'ble High Court of Andhra Pradesh reported in 2012 LLR 555 (Doshi Industries Vs. Employees&....
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....ER THERE IS BASIS". This clearly meant that there was no warranty of sale without encumbrances, on the contrary what was clear was that the property was being auctioned "AS IS WHERE IS BASIS, AS IS WHAT IS BASIS, WHATEVER THERE IS BASIS" i.e. inclusive of all encumbrance/liability's thereon. It was further contended that prior to the auction the Respondent No. 2 was put to notice of the quantum of dues of Unit No. 1 and the liabilities of Unit No. 1 cannot be fastened to the Corporate Debtor and the CoC cannot permit it. It is further contended by the Respondent No. 4 that as per the records placed, the Corporate Debtor has to pay the dues and the possession of Unit No. I was taken over by the Respondent No. 3 on 01.11.2017 by recourse to the provision of SARFAESI Act, 2002 and the copy of the possession notice dated 01.11.2017 is filed as Annexure R-4/3. It was further contended by the learned counsel for the Respondent No. 4 that on 15.11 2ol7, the Authorized Officer of Allahabad Bank i.e. Respondent No. 3 issued the Notice of Sale pertaining to Unit No" 1 and he has annexed the said notice dated 15.11.2017 as Annexure P-414 and brought to the notice of this Tribunal few clau....
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....ction. A copy of the said letter is filed as annexure R-4/5. It was further contended by the learned counsel for the Respondent No. 4 that another letter dated 04.12.2017 was sent by the Respondent No. 1/workers union bringing to the notice of Respondent No. 3 the dues of more than Rs. 3 Crores of the workers as well as the fact regarding the non-deposit of Provident Fund by the Corporate Debtor. Copy of the said letter is filed as Annexure R-4/6. It was further contended that in addition to the above the Recovery Officer EPFO also sent a letter dated 07.12.2017 informing the Respondent No. 3 about its dues qua establishment under sale (Unit-1) and also the fact that the same would be first charge on the assets/sale proceeds of auction of the establishment and may become the individual liability of RespondentNo.3. It was further contended that the said letter also directed the payment of Rs. 17,51,3251- which has been paid by the Respondent No. 3 from the proceeds of sale. Copy of the said letter dated 07.12.2017 is filed as Annexure R-4l7.It was further contended by the learned counsel for the R- 4 that having become aware of the said dues, the Respondent No. 3 duly intimated the ....
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.... the Respondent No. 4 that the sale notices clearly fastened the purchaser i.e. the Respondent No. 2 with a liability of the workmen also and hence cannot be fastened with any liability of the workmen as to sale took place before the commencement of CIRP. 2l. The learned counsel for the Respondent No. 5 which has been subsequently impleaded submits that it is representing the claim of the 77 former employees of the corporate Debtor and it made a claim of Rs. 5,44,36,8321- and contended that it is the purchaser who must bear this liability. 22. Now the contentions of the respondents are like this: - a. The Respondent No. I makes the claim on the Corporate Debtor, b. The Respondent No. 2 purchaser, denies the liability. c. The Respondent No. 3 contends that it is the purchaser who should bear the amounts of dues. d. The Respondent No. 4 also harps upon the purchaser to bear the liability; and e. The respondent No. 5 also contends that the liability befalls on the purchaser only. 23.The question to be decided now is that on whom the liability falls. The respondent No. 4 has given a list of citations supporting this case that the liability is on the purchaser which....
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....n its order dated 27.09.2019 in the said appeal observed that it is open for this Adjudicating Authority to consider the order passed by the Debt Recovery Tribunal dated 31-01-2019. The IA No. 32/60/JPR/2018 was heard at length" The parties had filed their replies. The reply of the Respondent No. 2 is also considered in this order. The Respondent No. 2 is the appellant before the Hon'ble National Company Law Appellate Tribunal in his aforesaid Diary No. 2130/2019 dated 30.09.2019 has not filed the order of the Debt Recovery Tribunal, Jaipur dated 31.01 .2019 which is the subject matter before the Hon'ble National Company Law Appellate Tribunal. Perusal of the previous orders of this Tribunal depicts that the Respondent No. 2 had, earlier filed IA No. 178/JPR/2019 under Rule ll of the NCLT Rules, 2016 praying for taking on record the order of Debt Recovery Tribunal, Jaipur dated 31.01 .2019 in SA No. 22/2018 titled as Anil Special Steel Industries pvt. Ltd. vs. Allahabad Bank and Anr. on 05.07.2019, my learned sister Dr. Deepti Mukesh, Member (Judicial) of this Tribunal has passed the following order in this regard: - IA No. I78/JPR/2019 is filed along with the copy of th....