TaxTMI 
TaxTMI 
2026 (6) TMI 715
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....UMAR SHARMA MEMBER (JUDICIAL) AND JATINDRANATH SWAIN MEMBER (TECHNICAL) For the Appellant : Mr. TK. Bhaskar, Advocate For Mr. Mayan H Jain, Advocate For the Respondents: Mr. Y. Suryanarayana, Advocate For Mr. Nithyavendhan K & Mr. Jash Shah, Advocates for R1 & R2 Mr. Krishna Grandhi, Senior Advocate For Ms. Chandra Lekha for R4 Mr. VVSN. Raju, Advocate for R7, R9, R12, R19, R21, R22 & R24 JUDGMENT [Per: As per - Justice Sharad Kumar Sharma, Member (Judicial)] These are a bunch of four company appeals preferred by a common Appellant by invoking the Appellate provision, as contained under Section 61 of the I & B Code, 2016. Though there are various interrelated factual aspects, which are required to be elaborately dealt with, the same would be ventured at a later stage by us, but presently we feel it apt to deal with the controversy precisely as it engages consideration in each of the appeals. A. Company Appeal (AT) (CH) (Ins) No. 93/2025 (Restraint of sale) 2. As far as Company Appeal (AT) (CH) (Ins) No. 93/2025 is concerned, the Appellant who happens to be the successful bidder in the e-auction process of M/s. IVRCL Limited, the company under liquidati....
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....erty of the Corporate Debtor, in the 3rd e-auction process. 5. The Ld. Tribunal, precisely while dealing with the aspect and so-called philosophy as argued by the Ld. Counsel for the Appellant, pertaining to the percept of approval of the business plan and consequentially inclusion of subsidiary and holding companies in the auction process, was not accepted on the ground that, the reference of the orders which were passed, that is dated 15.06.2022 or the order of 25.07.2022 had been misread by the Appellant, as it never approved the business plan, the plan not known to law. This Appellate Tribunal has observed that, the two orders do not at any point, make any reference to the approval of business plan or its terms while recording any directions to the Applicant or the liquidator in its two orders for the purposes of reflecting any aspect, which could have been taken to have accorded to be treated as an approval of the Business Plan. 6. The Ld. Tribunal while interpreting the order of 25.07.2022 claimed to be, as to be an order granting an approval of the business plan of the Appellant, wherein it has observed that, in the IA, which was subject matter of consideration that is....
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.... made by the Respondent, for transferring the assets of the Corporate Debtor and hence the Ld. Tribunal had rightly declined to grant an order in anticipation for protection of the assets because there could not have been an order in apprehension of an act expected to be done or which is an act yet to be established to have chanced. 9. Hence the Appellant preferred the present Company Appeal (AT) (CH) (Ins) No. 93/2025, wherein the Appellant has prayed for quashing the order, which is under challenge, and simultaneously has prayed for the relief as sought for in IA No. 357/2023, seeking direction as against the Respondent from alienating the property may be granted. The detailed reference to the arguments and the rival contentions, which would be common in nature almost in all these four appeals, they would be independently dealt with when we deal with the arguments extended by the respective counsels for the parties. B. Company Appeal (AT) (CH) (Ins) No. 309/2024 (Extension of time to Deposit) 10. In the connected appeal being company appeal, CA (AT) (CH) (Ins) No. 309/2024. It emanates from an order dated 02.08.2024, as it was passed in IA No. 947/2023, as preferred in C....
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.... 50 Crore is already paid as EMD, to be made within a period of 12 months from date of this order, in six tranches. For sake of clarity, a table detailing the payment schedule is placed as under: Sl. No. Tranche No. Amount Date of Payment 1 I Rs. 200 Crores 14.08.2022 2 II Rs. 200 Crores 14.10.2022 3 III Rs. 200 Crores 14.12.2022 4 IV Rs. 200 Crores 14.02.2023 5 V Rs. 200 Crores 14.04.2023 6 VI Rs. 150 Crores 14.06.2023 Total Rs. 1150 Crores 09. The successful bidder is directed to make strict adherence to the timelines as directed above and failure or any delay on part of the successful bidder to make payment in time shall attract the interest @12% p.a. for such delayed period. It is also clarified that, in case, the successful bidder is willing to make payments before the said timelines, then this order shall not act as bar in making payment, if so desired." 12. Thus, the relief which was granted in MA No. 2/2022, as decided by an order of 15.06.2022 was simpliciter, it was rather an extension of time to deposit the money, as upon the determination of the Appellant, bei....
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....idator, the liquidator had conducted three auctions and owing to the fact that, out of three processes, since two have failed and the auctions were not successful, yet another attempt was made for the third time for conducting an auction proceedings and as a result thereto on 15.05.2021, the Appellant was declared as to be a successful bidder, whereby the auction was settled in his favour with the fall of hammer. In the 3rd auction proceedings, selling the assets of the Corporate Debtor as specified in the bidding document for a reserve price of Rs. 1200 Crores as per the decision taken by the Stakeholder Consultation Committee, the auction was thus confirmed in favour of the Appellant, and in a step forward he deposited Earnest Money Deposit. 15. It is contended by the Appellant, that upon the confirmation of sale of Corporate Debtor as going concern on 27.12.2021, the Appellant was asked to deposit Rs. 50 Crores as Earnest Money Deposit, which he complied with, and thereafter the balance amount, which was left, due to be paid was Rs. 1150 Crores of balance consideration as a consequence of the confirmation of the sale on 27.12.2021. We had referred to the earlier order, which ....
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....e and forfeiture of the Earnest Money which stood deposited by the Appellant with the liquidator in terms of the affirmation of the auction bid in his favor has made on 15.12.2021. 18. In fact, the modulation of relief by the Appellant in IA No. 1314/2023, it was to the effect, that to declare the cancellation of the sale as communicated by the email of 28.07.2023 as to be illegal and unlawful. The relevant relief, as modulated by the Appellant in IA No. 1314/2023, is extracted: - "MAIN PRAYERS SOUGHT FOR: In view of the above stated facts, it is humbly prayed that this Hon'ble Tribunal may be pleased to: a) Pass an order declaring the action of the 2nd Respondent in cancelling the sale of the CD made in favor of the Applicant as a going concern and forfeiting the amounts paid, vide his Letter of Cancellation d ated 27.08.2023, as illegal, unlawful, unjust and arbitrary; b) Pass an order setting aside the Letter of Cancellation dated 27.08.2023 issued by the 2nd Respondent to the Applicant and it's Members; c) Pass any other order/orders as this Hon'ble Tribunal may deem fit and proper in the said circumstance of the case." 19.....
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....an order, which was prayed for in IA No. 947/2023, based upon the earlier order of 15.06.2022 passed in MA No. 2/2022. The appellant in this IA No. 947/2023 as preferred another IA being IA No. 1257/2024, and had prayed for, that the time, which was granted to deposit the amount, at the time of approval of the sale, that may be permitted to be amended and the time period thus settled by the order of 15.06.2022 to make the payment and as affirmed by the order of 02.08.2024 as passed on IA No. 947/2023, was sought to be extended for a further period, as it was prayed for in the application for the purposes of complying with the directions given in the order of 15.06.2022 and 02.08.2024 as passed on IA No. 947/2023 for depositing the balance amount due i.e. Rs. 1050 Crores, for having purchase the CD as going concern. 22. The Ld. Tribunal rejected the application IA No. 1257/2024 by making a quite elaborate observation, and considering the entire conspicuous of the case by dealing with the implications of the order passed on 15.06.2022 and 25.07.2022, as well the order dated 02.08.2024 which was passed on the application IA No. 1257/2024 where amendment was sought for, extension of....
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....ce of another. In fact, the foundation of the respective case of parties to these appeals are considered it is almost based upon the common principles which has to be commonly applied while considering the respective appeals, though marginally under a different backdrop. As we have already observed, the controversy stood initiated as a consequence of the invitation of Expression of Interest (EoI) to submit a bid in respect of "sale of M/s. IVRCL Limited" which is the company under liquidation, which was to be done by way of the 3rd e-auction process where the reserve price was fixed at Rs. 1200 Crores. 26. The Appellant's case was that the Appellant, being a private limited company having being incorporated under the provisions of the Companies Act, was determined as to be a successful bidder on the basis of the e-auction which was conducted on 15.12.2021. He submitted that he was as determined as to be a successful bidder, for purchasing the assets notified of the Corporate Debtor, that is, the company under liquidation as an ongoing concern. The Corporate Debtor was put to Corporate Insolvency Resolution Process by an order of the Ld. Adjudicating Authority as rendered on ....
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....m. In order to intricate the issue and to avoid payment of money as settled to be paid by him on the affirmation of the auction on 27.12.2021 and further intending to overcome the directives issued by an order of 15.06.2022, which was solicited by the Appellant himself. 30. He filed yet another application being IA No. 656/2022 just to complicate the issue seeking a clarification with regards to the articulated and self-imposed theory of business plan, which he contends to have submitted, on 28.01.2022, which the Appellant contends that it stood approved by the stakeholders committee, on 28.01.2022, which yet again is argued that, it was affirmed by the Ld. NCLT by an order of 25.07.2022. 31. In fact, the two orders dated 15.06.2022 or 25.07.2022, would be the main bone of contention which has been sought to be read by Appellant as if, it would result into an affirmation of the business plan dated 28.01.2022, is an absolute distortion of understanding of the Appellant to the orders of 15.06.2022 and 25.07.2022, as it was mal intended by the Appellant by inclusion within itself, the subsidiary, the holding companies/ and Associate Company, of the Corporate Debtor. It is the ca....
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.... in the shape of an alien theory of Business Plan. 33. There had been a contempt proceeding drawn being Contempt Proceeding (IBC) No. 2/2023 for non-compliance with the order passed on 15.06.2022 in M.A. No. 2 of 2022, which was filed by the liquidator (Mr. Sutanu Sinha), but we may not be of much concern as far as the contempt proceedings are concerned, which happens to be an issue independent to the controversy at hand, which is required to be decided by the instant company appeals. 34. The interpretation, which was given by the Ld. Counsel for the Appellant to the order of 25.07.2022, passed by the Ld. NCLT, as if, reading it to have accorded an approval of the business plan, which was submitted by the Appellant, for including the other assets of the liquidator, which was in the shape of the subsidiary, ancillary or the holding company, all the assets thus claimed belongs to the 3rd party or the subsidiary companies. The Appellant is said to have file an IA No. 357/2023, which is subject matter of consideration in Company Appeal (AT) (CH) (Ins) No.93/2025, where under a false apprehension of a probable sale of the assets belonging to the 3rd party assets of the subsidiary ....
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.... of the Corporate Debtor shall not be included in the liquidation estate and such assets cannot be utilized for the purposes of recovery of the liquidation estate process. For the aforesaid purpose, 36(4)(d) of IBC to be read with Regulation 21A is extracted hereunder: - "Section 36. Liquidation Estate. -(1) For the purposes of liquidation, the liquidator shall form an estate of the assets mentioned in sub-section (3), which will be called the liquidation estate in relation to the corporate debtor. (2) The liquidator shall hold the liquidation estate as a fiduciary for the benefit of all the creditors. (3) Subject to sub-section (4), the liquidation estate shall comprise all liquidation estate assets which shall include the following:- (a) any assets over which the corporate debtor has ownership rights, including all rights and interests therein as evidenced in the balance sheet of the corporate debtor or an information utility or records in the registry or any depository recording securities of the corporate debtor or by any other means as may be specified by the Board, including shares held in any subsidiary of the corporate debtor; (b....
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....f Indian or foreign "subsidiaries" of the Corporate Debtor will not be included in the liquidation estates and shall not be used for the purposes of recovery from liquidation estate. Similar were the observation, which was made under Regulation 21A, which also excludes the subsidiary or a holding company of the Corporate Debtor from constituting it to be as to be part of the liquidation estate. Ultimately, the Ld. Adjudicating Authority, while dealing with the relief sought for, by way of a restraint to alienate the property of the subsidiary and the holding company, which is excluded by virtue of Section 36(4)(d) of IBC to be read with Regulation 21A was declined to be restrained, to be sold, under the so-called percept of the alleged business plan, which according to the perception of the Appellant stood approved by the orders of 15.06.2022 and 25.07.2022, which has been absolutely misread by the Appellant. While dealing with the relevant part of the orders dated 15.06.2022 and 25.07.2022, the theory was not ever at all accepted by the Tribunal on the ground that the relief which was sought by way of a restraint from alienation in fact is where it was mis founded and no restraint....
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....irectly was seeking a modulation of the prayer sought for in M.A. No. 2 of 2022, which was decided on 15.06.2022. 40. The question which would emerge for consideration is whether the extension prayed for in IA No. 947/2023 could at all be granted by extending the same for the period from 15.06.2023 to 14.04.2024, and particularly in the context of the order of 15.06.2022, there could be two-fold implications as follows: (i) That when the Appellant has sought an extension of time to deposit the money, it will amount that he would be rather admitting that his rights would be confined to the auction which stood confirmed in his favor on 27.12.2021, and (ii) Further, his rights would be limited to the depositing of the amount as directed by the order of 15.06.2022. 41. For the aforesaid purpose, we will have to consider as to for what did basically M.A. No. 2 of 2022 was instituted before the Ld. NCLT. On perusal of the record, it reveals that M.A. No. 2 of 2022 was filed under Section 35(1)(n) and Section 60(5) of the I & B Code, 2016 which is to be read with IBBI (Liquidation Process) Regulations, 2016, wherein the Appellant has sought for the following relief....
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....e made by him on 27.12.2021 falls down and the said portrayed business plan dated 10.12.2021, would be confined to be taken only, for the purposes of re-classification of the payment schedule, as it was directed by the order of 15.06.2022, and not otherwise. The entire order of 15.06.2022, if it is considered, it does not at anywhere observes that the so-called business plan or the payment plan, was ever approved and that could not have been so also for the reason being that, it was not a concept which was available to the appellant under the terms and conditions of the auction notice issued by the liquidator. 44. The said argument of the Appellant that the business plan was approved by the order of 15.06.2022 either in the shape of a business plan or in the so called shape of a "payment plan" could very well be drawn from the findings which has been recorded in the order of 15.06.2022 where the Tribunal has observed in its order of 15.06.2022 in its para 8 observing thereof that "further, consider the various aspects and views as expressed by the lender in various meetings of the stakeholders committee and upon perusal of record, this Adjudicating Authority deems it fit to pass....
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....irected to make strict adherence to the timelines as directed above and failure or any delay on part of the successful bidder to make payment in time shall attract the interest @12% p.a. for such delayed period. It is also clarified that, in case, the successful bidder is willing to make payments before the said timelines, then this order shall not act as bar in making payment, if so desired." 45. The Ld. Adjudicating Authority, while deciding IA No. 947/2023, where the Appellant as sought an extension of time by way of amendment, as granted by the order of 15.06.2022 had rightly denied to extend the time by making reference to para 8 and 9 as extracted above and for the reasons, which has been given in para 10 and 12 of the said judgment. The inference which could be drawn from the Ld. Adjudicating Authority observations made in the judgment of 02.08.2024, as rendered in IA No. 947/2023, it was observed that none of the prayers as was sought for by the Appellant, stood recognized, that the Corporate Debtor, which was sold was as an on going concern prior to its sale or in any of the minutes of the Stakeholder Consultation Committee at any point of time did include any of the an....
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.... to make a detailed analysis with regard to the auction notice, as it was got published by the Respondent/Liquidator on 20.11.2021 and its consequential impact, of the Appellant having been settled as a successful bidder, on the basis of the e-auction which was held on 27.12.2021. 48. What is being required to be answered, and as also placed by the respective counsels, is that both the parties agreed to the fact that, it was upon the failure of two earlier auction proceedings that, ultimately the 3rd auction process was resorted to, for the purposes of selling the exclusive assets of M/s. IVRCL Limited, the company under liquidation. According to the auction notice itself as it was published on 22.11.2021, if we could go into the terms of it, the auction notice is quite explicit in its terms, which do not anywhere intend to invoke or widen the scope of the assets, which were expected to be sold, in relation to the company under liquidation, that is only M/s. IVRCL Limited. If the same is taken into consideration, and as argued by the Ld. Counsel for the Respondent too, that invitation of Expression of Interest (EoI), which was for the purposes of inviting the bids was exclusivel....
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.... us. 49. The Ld. Counsel for the Respondent Mr. Surayanarayan, in elaboration to his argument, which has been built up, was based upon the interpretation given to the auction notice of 20.11.2021, he had further submitted that in the communication, which was made by the liquidator, to the National Stock Exchange India Limited, in its communication of 20.11.2021, under its subject, it had intimated, with regards to the initiation of Expression of Interest (EoI), to submit the bids for M/s. IVRCL Limited only, the company under liquidation, as a going concern. Even the averments made in the aforesaid communication of 20.11.2021 by the liquidator, to the National Stock Exchange India Private Limited, it nowhere expresses that it provided any avenue to the liquidator while conducting the auction, or to the Appellant who was participating in the auction proceedings, to have included in it something, which was not expressly provided in the bidding document, and the subsequent communications which was made by the liquidator, which was necessary for the purposes of a valid conclusion of the auction proceedings. 50. The aforesaid contention, could be further elaborated upon if the auc....
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....or the Appellant, that the conditions contained therein cannot be permitted to be magnified according to the expectation of the Appellant, which may not be an express intention of the auction proceedings as it was notified to be conducted by the liquidator. The term "sale", as contained under the Terms and Conditions of the auction notice itself, is extracted hereunder: - "The term "Sale of the Company on going concern basis" wherever used in this document shall mean, sale of the company on Going Concern basis in accordance with the provisions of Insolvency and Bankruptcy Code, 2016 (IBC) and Liquidation Process Regulations and this Third E-Auction Process Information Document." 52. If the aforesaid definition which deals with the sale of the company under the terms and conditions of the auction. It has specifically pointed out that in accordance with the provisions of the I & B Code, 2016, where the liquidation process was being conducted it was in relation to M/s. IVRCL Limited only, that is, the company under liquidation, the same would be read exclusively for the sale of the company, and here the scope of the company under liquidation, yet again cannot be widened, t....
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.... a restriction that under no given set of circumstances, a new thought could be introduced or to be permitted to be introduced, to read something which is otherwise not explicitly given under the auction notice or in the terms of the bidding document, and that could be safely inferred, that the so-called introduction of the theory of business plan, on which the entire controversy is being based upon by the Appellant, would be restricted to be introduced and be considered in view of, the expression given in the aforesaid clause, that no recourse, would be open to be accepted for the purposes of the proposed sale of the company under liquidation as a going concern. In other words, the word used 'no recourse' would create an absolute bar that, in whatsoever manner, the horizon of the conditions of the contract could not be expanded in any manner whatsoever, and that too, particularly when under its terms and conditions of the contract, and particularly in the context of the definition has given therein, as contained under Clause 2.8, it describes the company, has to be the M/s. IVRCL Limited. The relevant portion of definition, Clause 2.8 is extracted hereunder:- "Company" sh....
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.... required to be done by the liquidator before auctioning is with regards to the valuation process of the entity, which is intended to be sold by way of conduct of e-auction. It is only upon the conduct and satisfaction recorded on the preliminary evaluation, its then only the terms and conditions of the bidding document are formulated to be made in league and harmony with the actual value of the assets, which could be made as a subject matter of e-auction and the fixation of minimum price i.e., the Reserve Price. This has been observed by us, for the reason being that when the bidding document in its Clause 2.23, as expressed above, refers to the term "reserve price", the normal analogy, which would be drawn is that before publication of the auction notice on 20.11.2021, it becomes inevitable for the entire agency, to first arrive at a conclusion as to what would be the appropriate reserve price, and it is thereupon only, when the assets are being valued, the reserve price is determined based on which the bids are invited. The said declaration of the reserve price is arrived at on the basis of the stipulations contained under Regulation 31A and Regulation 33, which has to be made a....
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....Clause 2.12, they cannot now come forward with a stand, under a fake expectation that the description of the property under liquidation would be inclusive of the ancillary and the holding company of the company under liquidation. Because prior to, submission of the so-called self-generated business plan, which is a theory not permissible under the terms of the bidding document or under the liquidation process rules, as pointed out under the statute, a fictional theory of submission of the business plan intending for the purposes of expansion to include the other assets of other independent entities, which are the holding, ancillary, company to the company under liquidation. The Appellant cannot take an advantage that merely because of the fact that they have submitted their business plan, it would be inferred that it was in inclusion of the holding and ancillary company merely based upon the interpretation given by the Appellant to the two orders passed on 15.06.2022, in M.A. No. 2 of 2022 and the order dated 25.07.2022, as passed on IA No. 656/2022, which has been interpreted by the Appellant in an absolute, wrongful manner, contrary to the exact expression given in the two orders....
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....61. The Ld. Counsel for the Respondent while opposing the motion of the appeal, as it was being argued by the Ld. Counsel for the Appellant, submitted that, as the Appellant has not complied with the terms and conditions and modalities of remittance of the amount due to be paid, and even despite the directions issued by the order on M.A. No. 2 of 2022, as decided on 15.06.2022, the consequences, as it was contained in the bid document under Clause 10 of the bidding document, giving a right of forfeiture to the liquidator of the earnest money. The invocation of the forfeiture clause contained under Clause 10.5 of the terms of the conditions of the bidding document, does not suffer from any legal error, as such, because failure to deposit the amount is apparent, it would not call for any interference, by this tribunal in the exercise of its Appellate Jurisdiction. 62. We have meticulously, gone into the terms of bidding documents, the documents placed on record by the parties, as well as the various laws, which have been relied upon by the respective counsels in support of their case. We would not hesitate to observe that, when the sale is put, on the basis of, "as is, where is ba....
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....tter of the auction. And once the Appellant has submitted to the e-auction process conducted by the Respondent, he would be simultaneously bound by the following terms and conditions, which are being extracted hereunder by way of a repetition, to submit that after having been determined as to be a successful bidder on 27.12.2021, he cannot now revert back and say that it would be inclusive of the subsidiary and ancillary company, of the company under liquidation. Because of the implication of Clause 7 as extracted above, and the following clause, which is extracted hereunder by way of a repetition which the Appellant would be bound to once he has willingly, participated in the e-auction process. The relevant portion of the terms and conditions from which the Appellant cannot resile is extracted hereunder: - 1. "Third E-Auction is being held on "AS IS WHERE IS, AS IS WHAT IS, WHATEVER THERE IS AND WITHOUT RECOURSE BASIS" and will be conducted "Online". The E-Auction will be conducted through the approved service provider, which shall be published on the website (www.ivcd.com) of IVRCL Limited. Interested bidders can register, bid and receive confirmation of their bid online....
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....ire amount of Rs. 1200 Crores, which was an admitted schedule known to the successful bidder, the Appellant herein, was given with the cut-off periods, within which the Appellant, was expected to deposit the entire sale value of the assets. 65. It is not only that the Ld. Counsel for the Respondent had particularly drawn the attention of this Tribunal to the minutes of the 16th meeting of the Stakeholders Consultation Committee, too which was held on 31.01.2022. And particularly he has quite elaborately argued, that in accordance with Clause 4, upon much deliberation and the interactions, which were made in the aforesaid 16th meeting of the Stakeholders Consultation Committee. It was observed that the bidder was informed that the revised plan documents submitted by them is not, as per the Insolvency and Bankruptcy Code, 2016, which is to be read with the liquidation regulations made therein, for the purposes of the remittance of the amount to be paid under the auction schedule as it was subject matter of consideration in the 15th Stakeholders Consultation Committee, which was deliberated upon by the liquidator, to the Appellant, the auction purchaser. The Ld. Counsel for the Res....
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....tion Committee, a very clear information was imparted to the bidder that there was no scope of the re-schedulement of the payment plan, as it was given in the 15th Stakeholder's Consultation Committee. And the ultimate determination was given therein that the demand notice to the bidder, which was issued after the culmination of the auction sale on 27.12.2021, it was to be strictly adhered to, and any violation of the same would result into the invocation of Clause 10 and its consequential cancellation. Further, if the minutes of the 16th Stakeholders Consultation Committee is taken into consideration, where the representative of the Appellant had participated, namely Mr. Kiran. In the Stakeholders Consultation Committee held in presence of Appellant, it was clearly provided that the terms and conditions of the bidding document, as per the IBC Regulations, dealing with the liquidation process, which provides that the revised plan in the payment proportion as submitted by the bidder can be considered and submitted to the Ld. NCLT, which was accepted by the grant of its approval of the e-auction was conducted on 27.12.2021. The decision thus upon it was taken in the 16th Stakehol....
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....ing IVRCL Limited under liquidation on going concern basis, to be made over a period of 18 months. He informed that Liquidator has no such power to accept payment beyond the period of 90 days provided under Liquidation Regulations." 68. In continuation thereof in the 16th Stakeholders Consultation Committee, had further made it quite clear to the Appellant that, under the terms of the bidding document or even under the Liquidation Regulations, there is no scope to consider the revised plan or any such business plan, as it was submitted by the Appellant. And no such business plan can be considered to be accepted when not contemplated under law or the bidding document. In fact, the conclusion drawn by the 16th meeting of the Stakeholders Consultation Committee on 31.01.2022, is not subject to challenge or even is not subject to judicial scrutiny at the behest of Appellant by the agitation of any ground which had been taken by the Appellant, in the instant appeal as to what implication will the decision of the 16th Stakeholders Consultation Committee would have in relation to the auction proceedings, which stood culminated, prior to the 16th Stakeholder's Consultation Committee....
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....wing to the aforesaid statement made under the 16th Stakeholder's Consultation Committee, now the Appellant cannot take a somersaulted stand by arguing that he would be entitled to, for inclusion of the subsidiary and the ancillary units of the company under liquidation, which has been indirectly sought to be included by submission of the business plan, which was not at all theoretically possible owing to the restrictions imposed by the terms and conditions of the bidding document, as well as by the various restrictive clauses as included, in the bidding document. 71. This could be further analyzed and concluded that in the application thus preferred by the liquidator being M.A. No. 2 of 2022, the order has rendered on it on 15.06.2022 itself is a complete answer, that any of the proposals extended by the Appellant for inclusion of the ancillary and any subsidiary unit of the liquidator, was not a scope which was at all required to be ventured into, or could have been borne out at all for the purposes of expansion of the conditions of the business plan for inclusion of the aforesaid, ancillary and subsidiary units of the liquidator. 72. The Ld. Counsel for the Respondent,....
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.... will not be applicable for the purposes of the instant appeal for the inclusion of the subsidiary and ancillary unit of the company under liquidation. And the reason which would be that, if the conclusion of a judgment is to be read, to be applied. In a particular case, it is always a fact which plays an important role to be considered, because exclusively the conclusion drawn cannot be isolatedly, extracted to be applied in a case which is factually based upon a different parameter altogether. The conclusion drawn in para 28, in the matters of BRS Ventures Investment Limited (Supra), as applied by the Ld. Counsel for the Appellant, would not be applicable for the purposes of accepting the conception of inclusion of the subsidiary and ancillary company of the company under liquidation. Para 20, 21, 28 to be extracted hereunder: - "20. If the creditor recovers a part of the amount guaranteed by the surety from the surety and agrees not to proceed against the surety for the balance amount, that will not extinguish the remaining debt payable by the principal borrower. In such a case, the creditor can proceed against the principal borrower to recover the balance amount. Simil....
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....e Company in liquidation before the amount demanded is paid. The Bank cannot raise the plea that it is liable only to the extent of any loss that may have been sustained by the Electricity Board owing to any default on the part of the supplier of goods i.e. the Company in liquidation. The liability is absolute and unconditional. The fact that the Company in liquidation i.e. the principal debtor has gone into liquidation also would not have any effect on the liability of the Bank i.e. the guarantor. Under Section 128 of the Contract Act, 1872, the liability of the surety is coextensive with that of the principal debtor unless it is otherwise provided by the contract. A surety is no doubt discharged under Section 134 of the Contract Act, 1872 by any contract between the creditor and the principal debtor by which the principal debtor is released or by any act or omission of the creditor, the legal consequence of which is the discharge of the principal debtor. But a discharge which the principal debtor may secure by operation of law in bankruptcy (or in liquidation proceedings in the case of a company) does not absolve the surety of his liability (see Jagannath Ganeshram Agarwale v. Sh....
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....ised and there is no provision therein which in any way affects the liability of a guarantor who is bound by the deed of guarantee executed by it. The High Court has referred to a decision of this Court in Maharashtra SEB v. Official Liquidator [Maharashtra SEB v. Official Liquidator, (1982) 3 SCC 358 : (1983) 53 Comp Cas 248] where the liability of the guarantor in a case where liability of the principal debtor was discharged under the Insolvency law or the Company law, was considered. It was held in this case that in view of the unequivocal guarantee, such liability of the guarantor continues and the creditor can realise the same from the guarantor in view of the language of Section 128 of the Contract Act, 1872 as there is no discharge under Section 134 of that Act. 6. In our opinion, the principle of the aforesaid decision of this Court is equally applicable in the present case. The right of the appellant to recover money from Respondents 1, 2 and 3 who stood guarantors arises out of the terms of the deeds of guarantee which are not in any way superseded or brought to a naught merely because the appellant may not have been able to recover money from the principal borro....
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.... two asterisks has been emphasised in original as well.] of his or her liability, which arises out of an independent contract." 28. Sub-section (2) of Section 60 contemplates separate or simultaneous insolvency proceedings against the corporate debtor and guarantor. Therefore, sub-section (3) of Section 60 provides that if CIRP in respect of the corporate guarantor is pending before an adjudicating authority and if the CIRP against the corporate debtor is pending before another adjudicating authority, CIRP proceedings against the corporate guarantor must be transferred to the adjudicating authority before whom CIRP in respect of the corporate debtor is pending. Thus, consistent with the basic principles of the Contract Act that the liability of the principal borrower and surety is coextensive, the IBC permits separate or simultaneous proceedings to be initiated under Section 7 by a financial creditor against the corporate debtor and the corporate guarantor." 73. On the contrary, the Ld. Counsel for the Respondent had submitted that, in the light of the ratio laid down by the judgment reported in 2023 Volume 10 SCC Page 189 Eva Agro Feed Private Limited versus Punjab Nat....
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....perty, which is otherwise not expressly included in the bidding document, is not a scope which is open to be considered, by introducing a concept which is not known to the eyes of law. 75. The Ld. Counsel for the Respondent, further, in order to denounce the concept as argued by the Ld. Counsel for the Appellant, on the basis of the business plan and its alleged approval on the basis of the orders dated 15.06.2022 and 25.07.2022, as sought to be attempted to be argued based on the orders passed on M.A. No. 2 of 2022 and IA No. 656/2022 respectively, cannot be accepted, on the basis of the ratio laid down by the principal bench of the NCLAT in Company Appeal (AT) (INS) No. 890/2020, Union Bank of India erstwhile Andhra Pradesh versus Siripuram Developers Private Limited and Others, particularly the Ld. Counsel for the Respondent has referred to para 9, 10, and 12 of the judgment, which is extracted hereunder:- "9. On going through the Minutes of Meetings of the lenders (CoC) of Corporate Debtor (IVRCL Limited) under Liquidation as per Paper Book Company Appeal (AT) (Insolvency) No. 890 of 2020 Annexure-11 page 330 it clarifies on the issue of subsidiary assets as a part ....
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....nnot form part of the liquidation estate. The Appellant Tribunal itself in Company Appeal (AT) (Ins) No. 167 of 2020 has held on 28.01.2020, the following: "After hearing learned counsel for the Appellant for a while we find that the claim sought to be enforced by the 'Corporate Debtor' has been rightly declined by the Company Appeal (AT) (Insolvency) No. 890 of 2020 Adjudicating Authority (National Company Law Tribunal) Division Bench, Chennai as in terms of provisions of Section 36(4)(d) of the 'Insolvency and Bankruptcy Code, 2016' assets of its subsidiary did not fall within the ambit of liquidation Estate. Learned counsel for the Appellant vehemently tried to stress that under sub-Section 3(a) of section 36 of the 'Insolvency and Bankruptcy Code, 2016' assets over which the 'Corporate Debtor' has ownership right including all rights and interests herein as evidenced in the balance sheet of the 'Corporate Debtor' or an information utility etc. comprise the liquidation Estate of 'Corporate Debtor'. However, the provision itself has been subjected to the exclusion clause engrafted in sub-Section 4 and assets of sub....
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....ave been attempted to be read as if they were an approval of the business plan. The first answer, which we would like to give, is that none of the expressions given in the order dated 15.06.2022 or 25.07.2022 could be read and concluded as if it was an approval of the business plan. And secondly, the IA which was preferred by the Appellant being IA No. 2180/2024, contending it to be, an application filed for implementation of a business plan, the same remained undecided, meaning thereby in the proceedings invoked by the Appellant for enforcing alleged approval of the business plan itself was not accepted by the Appellate Tribunal. 78. There is yet another important feature which has to be considered by us, as to what implication would the proceedings have when the Appellant had filed an IA. No. 1314/2023, seeking to declare the cancellation of sale, and the forfeiture under Clause 10 has to be illegal. 79. The ultimate conclusion drawn by the Ld. Adjudicating Authority, by the impugned order dated 05.02.2025, as passed on, IA No. 1314/2023 was that though the relief claimed was for the declaration of cancellation of sale to be void, but the said relief was not granted. Rather....
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.... wages. Hence that relief must be deemed to have been denied, for what is claimed but not granted necessarily gets denied in judicial or quasi-judicial proceeding. Further when a question arises as to the adjudication of a claim for back wages all relevant circumstances which will have to be gone into, are to be considered in a judicious manner. Therefore, the appropriate forum wherein such question of back wages could be decided is only in a proceeding to whom a reference under Section 10 of the Act is made. To state that merely upon reinstatement, a workman would be entitled, under the terms of award, to all his arrears of pay and allowances would be incorrect because several factors will have to be considered, as stated earlier, to find out whether the workman is entitled to back wages at all and to what extent. Therefore, we are of the view that the High Court ought not to have presumed that the award of the Labour Court for grant of back wages is implied in the relief of reinstatement or that the award of reinstatement itself conferred right for claim of back wages." 80. The aforesaid judgment of the Hon'ble Apex Court has laid down that once a party to the proceedings has ....
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....med that the relief claimed for cancellation of sale was denied. (ix) More particularly when the Appellant has prayed for, an implementation of the business plan, which he perceived to have been approved, was not pressed upon to, be decided by the Tribunal, which he invoked by filing IA No. 2180/2024. (x) I am of the considered view that in a public auction process. We cannot introduce a proceeding, which is alien to the one which is prescribed under the statute or under the terms of the bidding document so as to attach fairness to it, assuring to introduce any alien process, by included within it the alleged conception of moving of a business plan for its approval. (xi) The business plan is not being a percept contemplated under the terms of the bidding document, it couldn't be even have been acted upon or considered because it would be in violation of Articles 14, 21, and 19(1)(g) of the Constitution of India. 81. For the aforesaid reasons, I do not find any 'merit', in these 'appeals', the 'appeals' are accordingly 'dismissed'. [Per: As per Jatindranath Swain, Member (Technical)] M/s. Raghava Square Pvt. Ltd., (Appellant) has filed followi....
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.... as Business Plan) along with the bid and the required EMD of Rs.50 crore. His bid was evaluated by the Stakeholders Consultation Committee (SCC) and the Lenders' Group and certain revisions were proposed. After the revised proposal was submitted by the Appellant, upon deliberation of the same by SCC, the Liquidator submitted the application MA No. 2/2022 before Ld. NCLT, praying for fixing the payment schedule for the bid amount of Rs. 1200 crore. The same was adjudicated by Ld. NCLT vide its order dated 15.07.2022, directing the Appellant to pay the balance bid value of Rs.1150 Cr., (after adjusting the EMD amount of Rs.50 Cr.,) in 6 tranches with the first instalment due on 14.08.2022 and the last on 14.06.2023, and to pay interest at 12% per annum for any delays. 5. The Appellant, realizing that the said order did not deal with the issue of the reliefs and concessions sought under the Business Plan submitted by him as part of his bid, filed an application IA No. 656/2022 before Ld. NCLT for necessary orders on the same. He also prayed for formation of an empowered committee to take decisions in day-to-day operations and in monetisation of non-core assets of the CD, in order ....
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....ecorded that there was no consensus regarding the third-party assets and hence the Liquidator will file an application before Ld. NCLT for clarification on the said issue. However, no application for clarification was filed by the Liquidator despite specific mention that the Liquidator would do so. 8. The Appellant later observed that lenders were attempting to sell third-party assets covered under the Business Plan through e-auction notices published under the SARFAESI Act, 2002, which were contrary to the approved Business Plan and the Hon'ble NCLT's directions. Consequently, the Appellant filed an IA No. 357/2023 on 22.02.2023 before the Adjudicating Authority seeking restraint orders and protection of assets covered under the Business Plan. Later the Appellant filed one more application IA No. 947/2023 on 05.06.2023, seeking extension of time of 10 months for payment of balance sale consideration, that is, from 15.06.2023 to 14.04.2024. Subsequent to this, the Appellant filed another IA No. 1257 of 2024 seeking amendment to the prayer for IA No. 947/2023 seeking additional time of 10 months for payment of balance consideration from the date of disposal of IA No. 947/2023 as ....
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.... kick in as per clause 10.5 of the 3rd e-auction process information document. Aggrieved by the above two orders of Adjudicating Authority, the Appellant has approached this Appellate Tribunal by filing Company Appeal No. 93/2025 against the order in IA 357 of 2023 dated 05.02.2025 for protection of assets covered under Business Plan and by filing Company appeal No. 96/2025 against the order in IA 1314/2023 dated 05.02.2025. 12. Central to the prayers in all the above four Company Appeals are the following: - a. There was a Business Plan allegedly submitted by the Appellant while making the bid for the acquisition of the CD as going concern. b. The Adjudicating Authority by its order dated 15.07.2022 in MA No. 2/2022 dated 15.06.2022 and the order dated 25.07.2022 in IA No. 656/2022 had, in fact, approved the Business Plan submitted by him and the subsequent orders by Ld. NCLT amounted to revisiting and re-interpreting the said orders. c. The Business Plan submitted by him made certain stipulations in relation to acquisition of the CD as a going concern before the consideration of Rs. 1200 Crores was to be paid which was not taken into consideration wh....
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....etings viz., 16th to 20th SCC meetings and various other Lender's meetings as can be seen by the minutes of such meetings as submitted by him in his appeal memo as well as in the counter filed by the Respondent / Liquidator and that, based on their recommendations the Ld. NCLT has passed its order dated 15.06.2022 in MA No. 02/2022. Appellant has submitted that the words Business Plan and Payment plan were used interchangeably in the SCC meeting minutes, but no payment plan was submitted by Appellant and only Business Plan was submitted which included the manner and schedule of payment of bid amount. Further the Appellant had filed I.A.No.656 of 2022 before the Hon'ble NCLT seeking certain clarifications as per the Business Plan approved by the SCC. The Hon'ble NCLT vide orders dated 25.07.2022 had approved the business plan of the Appellant in following words- "prior to the approval of the company being sold as a going concern, whatever business plan the applicant has submitted to the liquidator or stakeholders' committee on account of which both the parties have come forward before this adjudicating authority to approve the sale as a going concern, shall be scrupulously followed ....
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....Successful bidder. At that time, it was informed by the Liquidator that, there was no consensus arrived at in the said Meeting in respect of third-party assets, and the lenders of the Corporate Debtor were of a different view than that of the Appellant and therefore, he will file an application before the Hon'ble NCLT for clarification on third party/subsidiary assets in view of the Business Plan submitted by the Appellant wherein it categorically states that the assets of the third party/subsidiaries will be taken over by the Appellant as part of the sale of the Corporate Debtor as a going concern. No such Application has been filed by the Liquidator till date. 19. It was specifically pointed out by the Appellant to the Liquidator to clarify whether is there any difference between the assets contained in the VDR and those in the Liquidation Estate of the Company. To this query, the Liquidator had informed that: -"As far as Liquidation estate is concerned, asset of third party/subsidiary is not the property of the IVRCL but enterprise value of those subsidiary companies/third party assets are part of the liquidation estate". He has contended that on one hand the liquidator is as....
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.... 355.17 Acres, whereas, the land bank in subsidiaries is about 1670 acres spread across various locations in India as detailed in Annexure 1.2 & 1.3 of the business plan. Nobody will not pay a hefty price of Rs. 1200 crores for only 355 acres of land. The Appellant has offered Rs. 1200 crores for the entire assets of the subsidiaries also which is covered under the business plan. Further, the Land bank in subsidiaries covering 1670 acres as detailed in Annexure 1.2 & 1.3 of business plan can be broadly divided into two categories, that is, (i) the assets relinquished by all lenders of the CD and covered under Common pool and shared by all the lenders of CD, covering 1118.63 Acres and (ii) the assets under exclusively charge of certain lenders of CD consisting of 551.37 Acres. From the above it is evident that all the 1670 acres of land belongs to subsidiaries only and then in such case the treatment shall be the same for all of these assets, which means that they all will form part of liquidator estate and should be handed over him without differentiating on the basis that they are 3rd party assets within the meaning of section 36(4)(d) of the Code. 23. It was contended that, Ld....
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.... to understand. 25. He has also submitted that, Ld. NCLT failed to consider that the Liquidator failed to appreciate the fact that the sale under CIRP and sale of the Company as going concern under Liquidation are akin except the manner of distribution of proceeds. Further the 3rd e-auction notice was issued to conduct the sale under Regulation 32(e) to be read with regulation 31A and Regulation 33 of IBC Liquidation Process regulations, 2016. As such submission of Business Plan is allowed under Liquidation Process and the Appellant relies on the Observations by various Adjdicating Authorities as per guidelines issued by Honb'le Supreme Court "In the case of Ghanashayam Mishra and Sons Pvt. Ltd., Vs., Edleweiss Asset Reconstrion Company Ltd., ((2021) 9 SCC 657), It was observed that, the sale of Corporate Debtor as a going concern under Liquidation process is akin to approval of resolution plan and, therefore to enable the successful bidder to continue with the operations of the CD on a clean slate." 26. In case of Arun Kumar Jagatramka Vs Jindal Steel and Power Ltd., & Anr., ((2021) 7 SCC 474) The Honb'le Supreme Court held that the primary objective of IBC 2016 is ....
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....e title which the Company had on its assets as on date of transfer. The Liquidator does not take or assume any responsibility for any shortfall or defect or shortcoming in the moveable/immoveable assets of the Company." 30. The Respondents state that the Business Plan has never been approved by the SCC and Ld. NCLT and that only the payment plan has been considered, and the Business Plan has not been considered or deliberated upon. 31. Properties shown in the VDR are shown only to show the enterprise value of the assets of the subsidiaries of the CD. 32. Assets of subsidiaries were not/cannot be sold under Liquidation of CD. Hon'ble NCLAT has already ordered that Section 36(4)(d) prohibits inclusion of assets of Indian or Foreign subsidiary of CD in the liquidation estate. 33. The Respondent herein on 14.02.2025 had filed a memo informing this Hon'ble Appellate Tribunal that present appeals filed by the Appellant has become infructuous by virtue of the subsequent order passed by the Hon'ble NCLT in I.A. 1314 of 2023. 34. The Respondents herein have placed reliance on the judgment of the Hon'ble Supreme Court in the case of BRS Ventures Investments Ltd vs SREI Infrast....
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....d over 18 months. Consequentially, in the 20th meeting of the SCC held on 10.06.2022, the decision was taken that an application be filed with Ld. NCLT and the views of the members of the SCC regarding the payment schedule and regarding various terms and conditions stipulated in the business plan will be placed before Ld. NCLT for decision. Accordingly, MA No.02/2022 was filed by the liquidator seeking directions on the payment schedule of the balance sale consideration. The Ld. NCLT in its order dated 15.06.2022 recorded that the sole successful bidder has submitted a business plan / payment plan dated 10.12.2021 to the liquidator for acquiring the Corporate Debtor as a going concern under Regulation 32A of the Liquidation Regulations, 2016, for a price of Rs.1200 crores to be paid over a period of 24 months as detailed in the plan and also recorded that bidder has submitted a revised business plan along with the payment plan which were deliberated in the SCC and solicited orders on the same. After hearing both sides, Ld. NCLT fixed a payment schedule for the payment of the balance sale consideration of Rs.1150 crores in six tranches within a period of 12 months from the date of i....
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....n, viz., MA 2 of 2022, was filed by Liquidator detailed views of the SCC as detailed in the minutes of meeting were annexed with the said application MA 2 of 2022, and which contained many points wherein there was disagreement to the business plan submitted by the Successful Bidder. For example, sale of assets and full control of the company etc. were not agreed by SCC. He informed that certain things in the business plan relate to the conclusion of the liquidation of the IVRCL Limited, for example, SEBI registration to continue etc., however, these appear to be not much of the concern if the same are allowed by SCC. He informed members that as regards issues related to sale of assets, core or non-core, and granting absolute control of the IVRCL Limited is concerned, views of the SCC were clearly communicated to the Successful Bidder as contained in the minutes of meeting of SCC and also informed to the Hon'ble NCLT in the application filed by Liquidator, viz., MA 2 of 2022. He further informed members that hence Hon'ble NCLT Order dated 25 July 2022 is not clear whether above submissions/views of the SCC are covered by the said order and accordingly this is an are....
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....lution scheme, which was later renamed as business plan and which the Respondents call as a payment plan. The liquidator admittedly was not agreeable to such a plan as it comes in his submissions before the Ld. NCLT and also before this Appellate Tribunal. If that is the case, then the bid should have been rejected as a non-responsive bid and the EMD should have been duly returned and the liquidator should have gone for a fresh bid. 41. But the said process was not followed, the bid evaluation and subsequent processes was allowed to linger for a long time, possibly because of the anxiety of the liquidator and the lenders to make the sale of the Corporate Debtor as a going concern a success. The liquidator and the SCC never submitted before the Ld. NCLT that they are not agreeable to the business plan as a whole nor the bidder was asked point blank before approval of the payment plan whether he is agreeable to the modifications sought by the lenders in the business plan submitted by him which was supposed to scrupulously followed as per the directions of Ld. NCLT. Because of this Ld. NCLT passed two orders on 15.06.2022 and 25.07.2022, respectively, to keep alive a process that s....
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.... the error in interpretation of Section 36 (4) (d) of the I & B Code, 2016, and Regulation 21A of the Liquidation Regulations, 2016 on part of Ld. NCLT and has stated that though assets of subsidiaries are excluded from liquidation estate under Section 36 (4), when there are secured assets the regulation 21A will apply and if the secured creditor does not realise the security interest or communicate the same within the time frame, these assets shall automatically become part of the liquidation estate as per Regulation 31A(3). Though it is an interesting point of law we need not go into this because in the first place the bid, which had proposed such a treatment of 3rd party assets was a bid that was not a finalized bid in true sense. The aforesaid questions should have been settled by the Bidder with the Liquidator who is the tender accepting authority before MA No. 02/2022 was filed before Ld. NCLT for finalization of the payment schedule. 45. Ultimately the Liquidator cancelled the bid and forfeited the amount deposited to the tune of Rs. 150 crore on account of non-payment of subsequent instalments as per the approved payment plan. While the liquidator is correct in cancellin....