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2024 (9) TMI 1604
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.... communication dated 14.07.2023 sent by the liquidator & any consequential action taken by the liquidator in respect of Haldia property and to direct the liquidator not to interfere in respect of Haldia property. 2. The prayer in the captioned IA reads thus: a) pass an order there by quashing and setting aside sale notice dated 19.07.2023, issued by the Respondent/Liquidator in respect of Haldia property which is exclusively charged to the Applicant/Secured Creditor/Phoenix ARC and the security interest in respect of which has not been relinquished towards the liquidation estate, and; b) pass an order there by quashing and setting aside the communications dated 14.07.2023 sent by Respondent/Liquidator and any consequential action taken by the Respondent/Liquidator in respect of Haldia property which is exclusively charged to the Applicant/Secured Creditor/Phoenix ARC and the security interest in respect of which has not been relinquished towards the liquidation estae, and; c) direct the Respondent/Liquidator, not interfere with the right of Applicant/Phoenix ARC to enforce its security interest on the Haldia property as only Applicant/Phoenix ARC has t....
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.... CIRP of the corporate debtor. (v) During the course of the CIRP, an appeal was filed by the RP before the Hon'ble NCLAT bearing No. Comp/App (AT) (Ins) 98 of 2021 seeking order for initiation of liquidation of the corporate debtor. The appeal was allowed vide order dated 16.03.2021 and the RP was appointed as liquidator of the corporate debtor. (vi) Following the liquidation order, the applicant, in respect of debt assigned by ICICI Bank filed its claim on 14.04.2021 in Form D for an amount of Rs. 793,45,16,428/- and the same was duly admitted. The said debt assigned by ICICI Bank was secured by exclusive first charge on Haldia Property in favor of ICICI Bank. In terms of rights under Section 52(1)(b) and 52(2) the applicant did not relinquish its security interest in Haldia Property and specifically mentioned the same in Form D. In respect of debt assigned by Axix Bank the applicant filed its claim on 14.04.2021 in Form D for an amount of Rs. 15,45,64,37,776/- and the same was also duly admitted. (vii) Meanwhile, The liquidator made paper publication on 26.03.2021 and 06.10.2021 inviting Scheme of compromise/arrangement (scheme) under section 230 of the....
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....cant. Further, the respondent again issued auction notice on 11.03.2023 for sale of properties of the corporate debtor by excluding Haldia Property. (xii) Meantime, Jmmu Pigments Limited filed an appeal bearing No. Comp App (AT) (Ins) No. 188 of 2023 before Hon'ble NCLAT against the order dated 06.01.2023 passed by this Adjudicating Authority. The Hon'ble NCLAT vide order dated 17.02.2023 granting one more opportunity to Jammu Pigments for approval of the scheme from the SCC. Pursuant to the said order the SCC in its meeting held on 28.02.2023 again rejected the revised scheme of Jammu Pigments and therefore, the said appeal before the Hon'ble NCLAT was dismissed vide its order dated 17.03.2023. The workman of the corporate debtor also filed an appeal bearing No. Comp App (AT) (Ins) No. 195 of 2023 before Hon'ble NCLAT against the order dated 06.01.2023 passed by this Adjudicating Authority. However, the said appeal was dismissed by the Hon'ble NCLAT vide its order dated 20.03.2023. (xiii) On 12.06.2023, the Refex group offered Rs. 265,50,00,000 (Rupees Two Hundred Sixty Five Crore Fifty Lakhs) to purchase the corporate debtor as going concern excluding H....
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....reon and further in point No.8A stated that it is not relinquishing its security interest over Haldia Unit. iii. The claim of the applicant was admitted by the liquidator , however, the applicant then submitted a revised claim for dues upto 16.03.2021 (i.e. liquidation commencement date) and the same was also admitted & conveyed by the liquidator on 09.08.2021. iv. According to Regulation 21A(1) of Liquiadation Process Regulations, a secured creditor is required to inform to the liquidator within 30 days from the liquidation commencement date of its decision to relinquish its security interest to the liquidation estate or realize its security interest , failing which the assets covered under the security interest are presumed to be part of the liquidation estate. For ready reference Regulation 21A(1) of Liquidation Process Regulations is reproduced here under: 21A (1) A secured creditor shall inform the liquidator of its decision to relinquish its security interest to the liquidation estate or realise its security interest, as the case may be, in Form C or Form D of Schedule II: Provided that, where a secured creditor does not intimate its decisi....
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....r of Phoenix and/or its assignor lender was not captured by Phoenix earlier reporting and filing on account of the inadvertent error and failure to verify the title documents deposited by the Auhtorised Officer of the Phoenix handling the Account." x. Through the said revised Form D dated 28.01.2023, the applicant has for the first time sought to communicate its decision to the Liquidator that it also has its security interest on the remaining 8.04 acres of Land at Haldia Unit and buildings and machinery there on, and, further that it would not be relinquishing the same in favour of the liquidation estate. However, the same is time barred and cannot be entertained by the Liquidator since as per Regulation 21A the applicant was required to inform the Liquidator of its decision to relinquish the security interest to the liquidation estate or not with in 30 days of the liquidation commencement date, i.e. by 15.04.2021. xi. Moreover, the applicant has failed to realize the security interest over the Haldia Property which was kept out of the liquidation estate (12.84 acres) with in the timeline as specified in Regulation 21A of the Liquidation Process Regulation. Hence....
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....t has now become part of Liquidation Estate. xvi. It is also worthwhile to note that the reserve price of the property was Rs. 74,21,00,000/- (Rupees Seventy-Four Crore Twenty- One Lacs Only) when it was first put to auction by the Liquidator vide E-auction sale notice dated 19.07.2023 while the price which was proposed by the Applicant was almost half. It is in the interest of all the stakeholders including the Applicant, if the property fetches higher price. xvii. It is further submitted that after first hearing of captioned Application by this Adjudicating Authority, 15th meeting of Stakeholder's Consultation Committee ("SCC") was convened on 12.09.2023 wherein Applicant was also present. In the said meeting, SCC unanimously advised the Liquidator to sell the Subject Property in a separate block by reducing the price by 10% than last auction price. The meeting was also attended by representative of Applicant who had unequivocally and categorically agreed to such a suggestion. xviii. During the subsequent hearing dated 14.09.2023 of this matter by this Adjudicating Authority, the liquidator pointed out this fact before this Adjudicating Authority an....
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....iled an application (bearing No. IA 165 of 2018) before this Adjudicating Authority seeking liquidation of the corporate debtor, however, the said application for liquidation was rejected by the Adjudicating Authority vide order dated 01.01.2021. Therefore, the RP filed an appeal before the Hon'ble NCLAT (bearing No. Company Appeal (AT) (Insolvency) No.98 of 2021) against the order of this Adjudicating Authority dated 01.01.2021. The Hon'ble NCLAT vide its order dated 16.03.2021 directed the liquidation of the corporate debtor and appointed the RP as liquidator. Following the said liquidation order the applicant filed its claim in Form- D on 14.04.2021 for 12.84 acres of land and buildings and machinery thereon of Haldia Unit. 6. It is further noted that pursuant to the order of liquidation the liquidator invited a Scheme of compromise/arrangement (scheme) under section 230 of the Companies Act, 2013 (Act) for the revival of the corporate debtor. One Jammu Pigments Limited submitted the scheme which was revised time after time, however, the scheme was not found acceptable. Thereafter, the liquidator published the notice for e-auction of the assets of the corporate debtor in news....
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....handed over the symbolic possession of 12.84 acres of the said property through his email dated 21.01.2023 to the applicant. 10. It is further noted that since nothing was realized from the said property even after so many days, the liquidator through email dated 14.07.2023 informed the applicant that the property now forms part of the liquidation estate and it was only at that time that the applicant informed the liquidator that there are two interested parties for the subject property, however, sale was not effected. 11. During the arguments the learned counsels referred Regulation 21A of the IBBI (Liquidation Process) Regulations, 2016. For ready reference the same is reproduced here under: Presumption of security interest. 21A (1) A secured creditor shall inform the liquidator of its decision to relinquish its security interest to the liquidation estate or realise its security interest, as the case may be, in Form C or Form D of Schedule II: Provided that, where a secured creditor does not does not intimate its decision within thirty days from the liquidation commencement date, the asset coered under the security interest shall be presumed to be....
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....ry provision, it is incumbent on the Court to start with an assumption that no part of the statute is otiose or superfluous." In respect of interpretation of 'proviso' Ld Sr Counsel has referred to judgment of Hon'ble Supreme Court in Nagar Palika Nigam v. Krishi Upaj Mandi Samiti, (2008) 12 SCC 364 where in the Hon'ble Supreme Court has observed as under: "9. "10. The normal function of a proviso is to except something out of the enactment or to qualify something enacted therein which but for the proviso would be with in the purview of the enactment." 14. Another judgment of the Supreme Court in Union of India v. VKC Footsteps (India) (P) Ltd., (2022) 2 SCC 603 was cited wherein the Supreme Court has stated as under: "Construing the proviso 91. Provisos in a statute have multi-faceted personalities. As interpretational principles governing statutes have evolved, certain basic ideas have been recognised, while heeding to the text and context. Justice G.P. Singh, in his seminal text, Principles of Statutory Interpretation [Justice G.P. Singh, Principles of Statutory Interpretation, (14th Edn. , Lexis Nexis, 2016) pp. 215-234.] formulates th....
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.... Sundaram Pillai v. V.R. Pattabiraman, (1985) 1 SCC 591] took note of the decision in Hiralal Rattanlal v. State of U.P. [Hiralal Rattanlal v. State of U.P., (1973) 1 SCC 216: 1973 SCC (Tax) 307] where K.S. Hegde, J., speaking for a four- Judge Bench of this Court observed that while ordinarily, a proviso is in the nature of an exception, the precedents indicate that sometimes a proviso is in the nature of a separate provision, with a life of its own. The contention of the Applicant that the liquidator has not intimated him the estimated amount, therefore, he was not obliged to pay, is not a correct proposition. When the applicant proceeded to realize the security interest, it was his duty to ask the liquidator for an estimated amount. No document has been shown to indicate that the applicant has asked the same from the liquidator. Further, the IBBI (LP) Regulations, 2016 have been framed in exercise of power conferred under the IBC, 2016. Regulation 44 provides for the timeline with in which the liquidation process has to be completed. If we accept the contention of the Applicant, then the liquidation process cannot be completed within the stipulated/ reasonable period. Such....