TaxTMI 
TaxTMI 
2025 (12) TMI 771
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.... against the order dated 10.08.2022 passed by the NCLT in l.A. No. 952/2022 in TCP/95/2017. Both the appeals were heard by a bench composed of two Members and they delivered separate judgments on 20.10.2023. However, the Member (Judicial) disagreed with the judgment authored by the Member (Technical). The Member (Technical) had partly allowed the appeals while the Member (Judicial) was inclined to dismiss them in their entirety. Owing to their difference in opinion, the Chairperson of the NCLAT referred the matter to another Member (Technical). By judgment dated 31.05.2024, the third Member agreed with the view taken by the Member (Judicial) and, in consequence, the appeals stood dismissed. 2. Aggrieved by the dismissal of its appeals, M/s. Shri Karshni Alloys Private Limited filed the present appeals under Section 62 of the Insolvency and Bankruptcy Code, 2016 ['the IBC']. The respondent in the appeals, viz., Ramakrishnan Sadasivan is the liquidator of M/s. Surana Industries Limited. 3. The corporate insolvency resolution process against M/s. Surana Industries Limited was initiated on 02.01.2018 but its liquidation commenced pursuant to the order dated 12.10.2018 passed by t....
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....oposal. 6. Thereupon, the appellant filed IA No. (IBC)/512(CHE)/2022 in IA No. 997/CHE/2021 in TCP/95/IB/2017 before the NCLT, seeking extension of time till 31.05.2022 to make the balance payment. By order dated 29.06.2022, the NCLT noted that the appellant had paid Rs.36.30 crores till that date, as was admitted by the liquidator, and granted extension of time. The appellant was directed to pay 50% of the balance sale consideration, i.e., Rs.34.60 crores, with 12% interest thereon from 15.04.2022 till the date of payment, on or before 30.06.2022; and the remaining 50%, i.e., Rs.34.60 crores, with 12% interest thereon from 15.04.2022 till the date of payment, on or before 31.07.2022. The NCLT categorically recorded that the appellant should strictly comply with these timelines and any deviation from the same would result in forfeiture of the entire amount paid by the appellant. 7. Admittedly, the appellant failed to abide by the extended timelines. It, however, paid a further sum of Rs.1.50 crores, thereby bringing the total amount paid by it to Rs.37.80 crores. At the SCC's meeting held on 01.08.2022, the stakeholders decided to enforce forfeiture of the entire payment made....
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....wing to the limitation prescribed under the IBC. Having noted this submission in the order, the High Court observed that the appellant had not exhausted the statutory remedy of preferring an appeal, though it had the opportunity and time to do so. It was noted that, after the dismissal of its extension application on 10.08.2022, the appellant still had four days' time to file an appeal against the order dated 29.06.2022, but without doing so, the appellant had chosen to file a writ petition on 05.09.2022. Holding that there were several factual disputes which could not be adjudicated under Article 226 of the Constitution of India, the High Court dismissed the writ petition as not maintainable, vide order dated 24.11.2022. 10. Significantly, the appellant did file an appeal against the order dated 29.06.2022 before the NCLAT on 13.08.2022 but did not disclose the same in its writ petition filed on 05.09.2022. This is clear not only from its senior counsel's statement but also from para 14 of the order, wherein the High Court noted that the appellant filed an appeal against the order dated 10.08.2023 passed by the NCLT relating to the same issue and left all contentions available ....
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....fell to Rs.227.31 crores; and in August, 2020, it fell further to Rs.117.23 crores. However, pursuant to the liquidator's efforts to sell the assets/plant, after the appellant's failure to make the payment, the same was sold to M/s. Texcon Steels Limited for Rs.145.38 crores on 30.08.2022. In that context, the appellant contended before the NCLAT that, as the resale value was far higher than the amount offered by it, i.e., Rs.105.21 crores, there was no actual loss suffered by the stakeholders. Dealing with this argument, the majority observed that the outstanding dues of the financial creditors were never fully recovered and they had to suffer a major haircut even if the assets/plant at Raichur were eventually sold at a value higher than that offered by the appellant. The majority also took note of the crucial fact that the appellant had accepted and acted upon the order dated 29.06.2022 by making two more payments, amounting to Rs.1.50 crores on 13.07.2022 (Rs.0.50 crore) and on 25.07.2022 (Rs.1.00 crore). Given the aforestated facts, the majority opined that the appellant could not approbate and reprobate in relation to the order dated 29.06.2022, that is, by acting upon it, on ....
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....must stress upon certain critical facts. The last auction in relation to the assets/plant at Raichur was held on 28.07.2021 with a reserve price of Rs.105 crores. However, no bids were forthcoming on that date. Thereupon, the SCC held a meeting on 31.07.2021 and decided to sell the said assets/plant at the scrap value of approximately Rs.50 crores. The auction process, therefore, stood concluded in its entirety, having culminated in failure, and the later decision of the stakeholders to resort to a scrap sale was in place on the date the appellant made its offer on 09.09.2021, proposing to buy the assets/plant at Raichur as a going concern. Perusal of the said proposal demonstrates that the appellant made a commitment that, after deducting its initial deposit of Rs.10.5210 crores made along with its offer as a commitment advance, the balance payable out of the offered Rs.105.21 crores would be deposited within 15 days from the date of receipt of the approval of the sale by the competent authority, i.e., the NCLT. This offer was considered by the stakeholders in their 9th meeting held on 15.09.2021. All 15 secured financial creditors/ stakeholders were present online and upon being ....
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....subject to the condition that the appellant would pay interest at 12% per annum on the payments made post 15.04.2022. The appellant was asked to submit an application before the NCLT seeking approval of the proposed revision in the timeline for making the payment. Pursuant thereto, the appellant filed IA No. (IBC)/512/CHE/2022 before the NCLT seeking extension of time till 31.05.2022. This application was filed on 25.04.2022. It is on this application that order dated 29.06.2022 was passed by the NCLT, stating as follows: '(i) The Applicant is directed to pay on or before 30.06.2022 the balance 50% of the sale consideration i.e., 34.60 Crore with 12% interest from 15.04.2022 till the date of payment. (ii) The remaining sum of Rs. 34.60 Crore shall be paid on or before 31.07.2022 with 12% interest from 15.04.2022 till the date of payment. (iii) The Applicant is directed to strictly comply with the said timelines. Any deviation from the same would amount to forfeiture of the entire amount paid by the Applicant.' 18. We may note that the appellant itself had asked for extension of time till 31.05.2022 in its prayer in the aforestated IA and as the order w....