TaxTMI 
TaxTMI 
2022 (4) TMI 887
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....of M/s. P.K. Sales Company Private Limited under Section 60(5) of the Code for 'Contempt' against the Liquidator/the Respondent alleging wilful disobedience of the Order dated 08/01/2020 passed by the Coordinate Bench of the Adjudicating Authority. 2. The Learned Adjudicating Authority, by the Impugned Order has observed as follows: "On 8th January 2020, this Bench has passed an order directing the Liquidator not to proceed to confirm the sale of the assets of the company until the permission is obtained. This particular order was passed on the submission made by the Ld. Counsel for the ex-promoters that a scheme under Section 230-232 of the Companies Act should be considered before proceeding towards liquidation. Subsequently, the present application for initiation of contempt proceedings has been filed on the ground that the liquidator had sold away the assets of the company. The point to be noted here is that it is 2 years that the applicant has not proceeded to file any scheme and petition under Section 230-232 of the Companies Act and has been dragging the matter. As there is no scheme/petition filed by the Applicant under Section 230-232 of the Companies ....
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.... dated 08/01/2020 passed by the Adjudicating Authority in CA 166/2020 which reads as follows: "2 applications have been filed by Ex-Promoters relying upon the judgement of Hon'ble NCLAT which ordains that a scheme under Section 230-232 should be considered before proceeding towards Liquidation. It is not open to the ex-promoters to consider the same as the decision lies in the hands of the liquidator. Pending any decision on any proposed scheme being accepted by the Liquidator, the sale of the assets of the Corporate Debtor shall only be confirmed after due permission from this Bench. All records necessary for considering the scheme shall be tendered by the Corporate Debtor to the Liquidator to enable him formalise the same. To come up for further consideration on 29th January 2020." * It is the case of the Appellant that there was a clear direction to the Liquidator vide this Order to formalise the Scheme on the basis of the records available with the Appellant pertaining to the said OTS. It is submitted that in light of the Order dated 06/01/2020, the Liquidator convened a meeting with all the stakeholders in order to formalise a Scheme, bu....
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....ce to the same buyer who had approached the Appellant and the Appellant had sought the permission of the Liquidator to inspect the said property. Due to the complete defiance of the Order dated 08/01/2020, the Appellant filed Contempt Application vide I.A.5278/2021, which was dismissed by the Adjudicating Authority. 4. Submissions of the Learned Counsel appearing on behalf of the Liquidator: * It is submitted that vide Order dated 07/08/2020, the Adjudicating Authority had given permission to the Liquidator to liquidate the assets and subsequently the Appellant vide email dated 28/08/2020 requested the Liquidator to arrange for physical inspection of the property. * The Liquidator complied with the Order of the Adjudicating Authority and disposed of the assets conducting a public auction. It was also submitted that a local commissioner was appointed by the Adjudicating Authority on account of complete non-cooperation of the 'Corporate Debtor'. Learned Counsel for the Liquidator further contended that the 'Corporate Debtor' did not attend the meeting of the concerned stakeholders held on 17/01/2020, wherein the Liquidator requested the representatives of the Sus....
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....he Liquidator to enable him formalise the same'. It is the further case of the Appellant that in an early hearing Application seeking early disposal of the Application I.A. 1064 of 2019, the Adjudicating Authority had passed the Order on 26/06/2020 observing that all the Petitions were admitted under Section 10 of the Code and no settlement under Section 230 was arrived at, and Section 12-A proceedings cannot be invoked once the Liquidation Order is passed. 7. This Tribunal in 'Ramesh Kumar Chaudhary Through its authorised representative Gautam Chaudhary & Anr.' Vs. 'Anju Agarwal Liquidator of Shree Bhawani Paper Mills Ltd. & Ors.' considered the 'Corporate Debt Restructuring' under the Scheme of Compromise & Arrangement. While observing that a 'Debt' given by a lender can be restructured by the lender by any 'Scheme' issued by the lender or RBI or Central Government, held as follows: "230. Power to compromise or make arrangements with creditors and members.- .................(2) The company or any other person, by whom an application is made under subsection (1), shall disclose to the Tribunal by affidavit- (a) all material facts relating to the company, such ....
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.... M/s. P.K. Group of Industries is detailed as hereunder: "ARMB/ND/PF: 290,283,277/ OR: 228/2019-20 Dated17.08.2019 Mr. Parveen Kumar Jain (Suspended Director) C/o P K Group of Industries Delhi, Dear Sir, Sub: OTS offer given by Mr. Parveen Kumar Jain for Liabilities of M/s. P K Sales Pvt. Ltd. (at Delhi-GT Karnal Road (Branch), M/s. P K Industries (at Delhi-West Patel Nagar Branch), M/s. Dreamland Realtors (at Delhi-West Patel Nagar Branch), & individual accounts of Mr. Parveen Kumar Jain & Mr. Manish Jain (at Delhi-West Patel Nagar Branch). Ref: Your letter dated 16.08.2019. In terms of MD/IOTS/50/19-20 dated 17.08.2019, the offer of the borrower for settling the above accounts under OTS by paying Rs. 30,00,00,000/- (Thirty Crores only) is accepted in-principle subject to the following condition. 1. OTS amount of Rs. 3000.00 Lakh (Thirty Crores Only) should be paid as follows: a) Rs. 25.00 Lakhs immediately. (2 Demand Drafts amounting to Rs. 25.00 Lakhs) received by the bank and the same is subject to realization). b) Rs. 25.00 Lakhs payable on or before 31.08.2019. ....
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....or Company." 11. Keeping in view that admittedly the Scheme under Section 230 of the Act was never formalised; the date extended by the Hon'ble High Court of Delhi was only up to 31/07/2020; that more than two years has lapsed subsequent to the Order of this Tribunal; that it is a Section 10 Application under the Code filed by all three Companies together; that the Order dated 15/07/2020 has attained finality, the Liquidator has only complied with the terms of the Order dated 15/07/2020 and lastly there is no Scheme which has been filed till date under Section 230-232 of the Act; it cannot be said that the action of the Liquidator in selling the asset by public auction, be termed as contempt or any breach of the Order of the Adjudicating Authority. 12. For all the aforenoted reasons, this Appeal fails and is accordingly dismissed. No Order as to costs. ============= Document 1MGnal ANNEXORE A-12 Cally Manish Jain 124 Regarding inspection of all the three companies property Imessage Manish Jain spisales [email protected]> To Fi Aug 28, 2020 a 847 PM pundusesgmail.com Liquidator PK Sales company Pvt Ltd liquidator.pksalescompany@gmail com [email protected] Ce SAGA....