2022 (5) TMI 1501

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....ted by a consortium of, Mr. Navraj Mittal (lead member), Mr. Vishnu Prakash Goyal, Mr. Ashok Kumar Gupta And Mr. Yajan Bansal in the liquidation proceedings with respect of the Corporate Debtor and declare that the same to be binding on the Corporate Debtor and its stakeholders; (b) Pass an order setting aside of a corpus of Rs. 1 Crore (Rupees One Crore) from the consideration for any expenses that the Liquidator may incur after the transfer date for liquidation related processes and form filings; (c) Pass an order waiving all penalties on account of non compliances that may be sought to be imposed under the GST laws; (d) To issue direction to the GST authorities to not initiate any coercive or penal action against the Liquidator in relation to any non-compliances; (e) Pass such other order/orders as it may deem fit and proper in the facts and circumstances of the case." IA-672(PB)/2021 3. This is an application filed by Mr. Kunwer Sachdev, the Ex-Promoter of the Corporate Debtor i.e. M/s. Su-Kam Power Systems Limited. 4. The prayers in IA No. 672(PB)/2021 are as follows:- "a) Pass an order to appoint an independent Forensic Au....

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....Sachdev, the ex-promoter of the CD. This was the only resolution plan received during the CIR period in relation to the CD. The RP sought approval of the CoC to appoint an entity (M/s. Kirtane and Pandit LLP) for conducting due diligence, to examine the plan for compliance, in accordance with the provisions of Section 29A of the Code. The due diligence report dated 06.12.2018 and the legal opinion clearly stated that, the plan submitted by the Consortium of Ex-Promoter was ineligible in terms of Section 29A(h) of the Code. 7. The CoC in its meeting held on 13.12.2018 concurred with the decision of the due diligence report and held that the Promoter is ineligible in terms of Section 29A(h) of the Code. The said resolution was conveyed to the ex-promoter by RP on 27.12.2018. The decision of the CoC declaring the ex-promoter as being ineligible under Section 29A (h) of the Code was challenged by the ex-promoter before this Adjudicating Authority which was dismissed on 02.04.2019, subsequently this order was not challenged. 8. Further, on 23.01.2019, the CoC made another attempt to obtain the resolution plan for the Corporate Debtor and the last date for the submission of the pla....

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....b) On failure, the liquidator is required to take steps to sell the business of the 'Corporate Debtor' as going concern in its totality along with the employees and (c) The last stage will be death of the 'Corporate Debtor' by liquidation, which should be avoided." 12. The Liquidator in compliance with the directions of the Hon'ble NCLAT, issued the EOI on 02.08.2019, to invite interested persons to submit their EOI for scheme of compromise/arrangement in terms of Section 230 of the Companies Act, 2013. Accordingly, the EOI's were received from various parties. 13. However, at the 6th meeting of the Secured Stakeholders Committee, held on 04.09.2019, the EOI which was primarily submitted by the ex-promoter was not accepted as he was ineligible in terms of Section 29A(h) of the Code. Accordingly, the EOI of the ex-promoter was rejected by the Secured Stakeholders Committee in the same meeting. 14. Further, the CA-2335(PB)/2019 was filed by the ex-promoter before this Tribunal seeking to participate in the compromise and arrangement proceedings and the request for the same was declined by this Tribunal vide order dated 31.10.2019, was further....

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.... II of this application). The contents of this process document will be very relevant for the purpose of adjudicating this issue raised by way of objection by the ex-promoter more particularly the clause 1.16.7 which reads as under: "1.16.7 Step VII: Transfer of the Company as a going or the Assets With respect to the acquisition of the Assets, the Successful Bidder(s) shall ensure that the Transfer Date occurs within 90 days of the issuance of the Letter of Intent to the Successful Bidder (s). The Liquidator shall issue Certificate of Sale (countersigned by the Liquidator or any authorized Representative of the Liquidator) to the Successful Bidder(s) for the relevant Asset. It is hereby clarified that upon the issuance of Certificate of Sale, the risk and title to the Asset shall stand transferred to the Successful Bidder(s). It shall be the responsibility of the Successful Bidder(s) to take the delivery of the Assets. The delivery of the Assets by the Liquidator to the Successful Bidder(s) shall be evidenced by a delivery receipt signed by the Liquidator or any authorized Representative of the Liquidator and acknowledged by the Successful Bidder(s). Wit....

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....r, immediately on 14.12.2020, the present application has been filed by the Liquidator for the relief as stated above. 20. Mr. Abhinav Vasisht, Ld. Sr. Counsel, appearing for the Liquidator explained that the various steps are taken by the RP during the CIR process and in absence of the acceptable plan, the steps were taken for initiating liquidation proceedings and further steps were taken by the Liquidator to provide for a scheme of arrangement which also failed and consequently they had to proceed to sell the Corporate Debtor as a going concern, resulting in two (02) auctions and the 2nd e-auction concluded in favour of the respondent nos. 1 to 4, who are the successful bidders. He also pointed out that the first reserve price was based on valuation, that was taken at the initial stage and in the absence of the valid bid, they had to revise the valuation to Rs. 40 crores, where they have also complied with the statutory requirement. Therefore, in view of the bid submitted by respondent nos. 1 to 4, which is far above to the reserve price, the same has to be confirmed. 21. Mr. Arun Kathpalia, Ld. Sr. Counsel and Mr. K. Dutta, Ld. Sr. Counsel appearing for the successful bid....

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.... to participate or agitate in this proceeding or submit a settlement proposal at this stage, in view of the finding of this Adjudicating Authority, Hon'ble NCLAT and Hon'ble Supreme Court, wherein it was held that, the ex-promoter has become ineligible in terms of Section 29A(h) of the Code as well as proviso to sub-section (f) of Section 35 of the Code. 27. The third objection was that, the e-auction is dated 12.10.2020 and 14.10.2020. The letter of intent was issued on 16.10.2020 and therefore, in terms of the bid process document the entire amount should have been paid within 90 days i.e. before 15.01.2021. Since this amount has not been paid, the sale cannot be termed as confirmed. As a result, the ex-promoter is entitled to participate and make an offer. This contention appears to be a misconception of the bid process document para 1.16.7, which has already been extracted above. 28. It has been clearly indicated in the bid process document, that the acquisition of the Company as a going concern, will happen only after successful bidder gets the approval of the Adjudicating Authority, meaning thereby, on or from the date of approval of the e-auction, where respond....