Deputy Commissioner of Income Tax, Punjab Vs. Ravinder Kumar Goel, Liquidator. - we are of the considered opinion that the Learned Tribunal has committed an error in holding that the Department had the jurisdiction even to assess the company in liquidation after the liquidation order has been passed.

 NCLAT (16.10.2023) in Deputy Commissioner of Income Tax, Punjab Vs. Ravinder Kumar Goel, Liquidator. [Comp. App. (AT) (Ins) No. 1397 & 1398 of 2022] held that;

• Once moratorium is imposed in term of Section 14 or 33(5) of the IBC as the case may be the respondent authority only has a limited jurisdiction to assess/ determine the quantum of customs duty and other levies. The respondent authority does not have the power to initiate recovery of dues by means of sale/confiscation, as provided under the Customs Act.

• we are of the considered opinion that the Learned Tribunal has committed an error in holding that the Department had the jurisdiction even to assess the company in liquidation after the liquidation order has been passed.

Excerpts of the Order;    

16.10.2023 This appeal is directed against the order dated 28.09.2022 passed by the National Company Law Tribunal, Chandigarh Bench, Chandigarh by which two applications bearing I.A. No. 317 and 535 of 2021, filed under Section 60 (5) of the Insolvency & Bankruptcy Code, 2016 (in short ‘Code’) by the Liquidator of M/s Supreme Tex Mart Limited (Company under liquidation) against the Deputy Commissioner of Income Tax, Punjab have been allowed.

# 2. Briefly put, the Allahabad Bank filed an application under Section 7 of the Code against M/s Supreme Tex Mart Limited which was admitted on 29.09.2017.

# 3. In the absence of the Resolution Plan, liquidation order was passed on 08.08.2018 and the Appellant filed its claim with the Erstwhile Liquidator which was admitted to the extent of Rs. 7,36, 59,888/-.

# 4. However, after the initiation of the liquidation proceedings, the Appellant- Income Tax Department passed an assessment order pertaining to the assessment year 2018-19 on 13.05.2021 and issued notice under Section 274 r/w Section 271 AAC (1) of the Income Tax Act, 1961 to the company under liquidation.

# 5. Aggrieved against these proceedings, the Liquidator filed the aforesaid two applications before the Tribunal, relying upon Section 33(5) of the Code to contend that after the liquidation order is passed no suit or any other legal proceedings are allowed to be continued by or against the Corporate Debtor, whereas the Appellant- Income Tax Department has assessed the company under liquidation, vide its order dated 13.05.2021, for the assessment year 2018-19 and has also issued a show cause notice on 29.09.2021 which is hit by Section 33(5) of the Code.

# 6. Counsel for the Appellant has vehemently argued that the Appellant is not debarred even under Section 33(5) of the Code to frame the assessment. In this regard, he has referred to a decision of the Hon’ble Supreme court rendered in the case of Sudaresh Bhatt, Liquidator of ABG Shipyard vs. Central Board of Indirect Taxes and Customs [(2023) 1 SCC 472 (SC)] and drew our attention to paragraph 57 (1) of the said judgment, where the conclusion has been drawn by the Hon’ble Supreme Court as under :-

• “57.1 Once moratorium is imposed in term of Section 14 or 33(5) of the IBC as the case may be the respondent authority only has a limited jurisdiction to assess/ determine the quantum of customs duty and other levies. The respondent authority does not have the power to initiate recovery of dues by means of sale/confiscation, as provided under the Customs Act.”

# 7. On the other hand, Counsel for the Respondent has submitted that the order of the assessment was passed on 13.05.2021 much after the passing of order of liquidation on 08.08.2018, therefore, even the proceedings under Section 33 (5) of the Code are barred.

# 8. We have heard Counsel for the parties and perused the record with their able assistance. The issue involved in this case is as to whether after the initiation of the liquidation proceedings, the Appellant being Department of Income Tax, by virtue of an assessment having been made during the pendency of the liquidation proceedings, can ask the company under liquidation for the Income Tax dues and also issue notice for recovery etc.

# 9. Section 33(5) of the Code specifically bars any kind of legal proceedings by or against the Corporate Debtor after the liquidation order is passed but the Hon’ble Supreme Court in the case of Sudaresh Bhatt (Supra) has made it clear in para 57.1(supra) that even after the imposition of the moratorium or invocation of Section 33 (5) of the Code, as the case may be, the only jurisdiction with the authority is to assess and determine the quantum but it does not have the power to initiate recovery of dues by means of sale/ confiscation as provided.

# 10. In view of the aforesaid decision to which no contrary judgment has been cited, we are of the considered opinion that the Learned Tribunal has committed an error in holding that the Department had the jurisdiction even to assess the company in liquidation after the liquidation order has been passed.

# 11. However, there is no error on the part of the Learned Tribunal where it has held that the Department cannot on the basis of the subsequent order make recovery. With these observations, the present Appeal is disposed off.

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Soumitra Lahiri, Liquidator of Sri Aranath Logistics Limited.- the waivers with regard to extinguishment of claims which arose Pre-CIRP and which have not been claimed are granted in terms of Ghanashyam Mishra and Sons Pvt Ltd v Edelweiss Asset Reconstruction Company Ltd

 NCLT Kolkata (04.08.2023) In Soumitra Lahiri, Liquidator of Sri Aranath Logistics Limited. [I.A. (IB) No. 1197/KB/2022 &  I.A. (IB) No. 177/KB/2023 In C.P. (IB) No. 676/KB/2018 ] held that;

• Since, this is a ‘Going concern sale’ , the Successful Bidder shall make necessary applications to the concerned regulatory or statutory authorities for renewal of business permits and supply of essential services, if required, with all necessary forms along with filing fees etc. upon receipt of such application such authority shall  consider granting the same keeping in mind the objectives of the Code which is concerned with resolving of the insolvency of the Corporate Debtor.

• With respect to prayer (b) of IA 1197, the waivers with regard to extinguishment of claims which arose Pre-CIRP and which have not been claimed are granted in terms of Ghanashyam Mishra and Sons Pvt Ltd v Edelweiss Asset Reconstruction Company Ltd

Excerpts of the Order;    

This court convened via hybrid mode.

# 2. The Corporate Debtor was admitted into Corporate Insolvency Resolution Process (‘CIRP’) on 08 November 2019 by this Adjudicating Authority and Mr. Hanuman Mal Choraria was appointed as the Interim Resolution Professional. Mr. Soumitra Lahiri, the Applicant herein was appointed as Resolution Professional vide order dated 20 September 2020.

# 3. An order dated 22 September 2021 was passed initiating the commencement of liquidation process of the Corporate Debtor and Mr. Soumitra Lahiri, the Applicant was appointed as the Liquidator. I.A. (IB) No. 1197/KB/2022 and I.A. (IB) No. 177/KB/2023

# 4. The Interlocutory Applications have been filed under section 60 (5) of the Insolvency and Bankruptcy Code, 2016 (‘the Code’) by Mr Soumitra Lahiri, Liquidator of Sri Aranath Logistics Limited (‘Applicant’).

# 5. I.A. (IB) No. 1197/KB/2022 has been filed seeking the following reliefs:

a. Pass an order approving sale of the Liquidation estate of Sri Aranath Logistics Limited in Liquidation on "AS IS, WHERE IS, WHATEVER THERE IS AND WITHOUT RECOURSE BASIS" as a Going concern as defined in sub regulation (e) of regulation 32 of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016;

b. Pass an order permitting the successful purchaser, Udgam Commercial Limited, to take over the Liquidation estate of the Corporate Debtor as a clean state without being burdened with any pre-liquidation liabilities of the corporate debtor;

c. Pass an order that the Successful Bidder has assumed that upon approval of this sale as a Going Concern by the NCLT all subsisting consents, licenses, approvals, rights, entitlements, benefits and privileges whether under law, contract, lease or license, granted in favour of the Corporate Debtor or to which the Corporate Debtor is entitled or accustomed to shall, notwithstanding any provision to the contrary in their terms, be deemed to continue without disruption for the benefit of the Corporate Debtor.

d. Pass an order that the successful purchaser shall stand discharged from pre-liquidation claims and on and from the approval of the sale of the liquidation estate, as Going Concern, by the Hon'ble Adjudicating Authority, all claims which are not a part of E-Auction Process memorandum shall stand extinguished and no person will be entitled to initiate or continue any proceeding in respect to a claim which is not part of the E Auction Process Memorandum.

e. Pass an order that upon approval of this Going Concern sale by Hon'ble Adjudicating Authority, all inquiries, investigations and proceedings, whether civil or criminal, notices, causes of action, suits, claims, disputes, litigation, arbitration or other judicial, regulatory or administrative proceedings against, or in relation to, or in connection with the Corporate Debtor or the affairs of the Corporate Debtor pending or threatened, present or future, (including without limitation, any investigation, action, proceeding, prosecution, whether civil or criminal, by the Central Bureau of Investigation, the Enforcement Directorate or any other regulatory or enforcement agency), in relation to any period prior to the Completion Date or arising on account of the acquisition of control by the Resolution Applicant over the Corporate Debtor pursuant to this Resolution Plan shall stand withdrawn or dismissed and all liabilities or obligations in relation thereto, whether or not set out in the balance sheets of the Corporate Debtor or the profit and loss account statements of the Corporate Debtor, will be deemed tohave been written off in full and permanently extinguished and the Corporate Debtor or the Successful Bidder shall at no point of time be, directly or indirectly, held responsible or liable in relation thereto notwithstanding any adverse order that may be passed in respect of the same by any authority.

f. Pass an order that all contracts between the Corporate Debtor and related parties (as defined in Section 5(24) of the Code shall stand terminated with effect from the Completion Date unless otherwise notified by the Successful Bidder by the Completion Date, and the Corporate Debtor shall not be liable towards any claims with respect to termination of such contracts, including but not limited to, any claims, penalty, damages (liquidated or otherwise), arbitration claims, claims for specific performance or claims for interim relief.

g. To Pass an order that all financial obligations under any contract to which the Corporate Debtor is a party, relatable to a period prior to the Liquidation commencement date, if not provided for under this E Auction Process Memorandum, shall stand extinguished.

h. To pass an order that all matters requiring any shareholder approval or approval of the Board for implementation of the Going Concern Sale shall be deemed to be granted. However, all filing- related compliances shall be completed and no waiver can be granted in this regard.

i. Pass an order for distribution of sale proceeds in conformity with the waterfall mechanism laid down in section 53 of the Insolvency and Bankruptcy Code, 2016.

j. Pass such further and other orders and directions as the nature and circumstances of the case may require and as this Hon'ble Tribunal may deem fit and proper.

# 6. I.A. (IB) No. 177/BK/2023 has been filed seeking the following reliefs:

a. Pass an order under clause (n) of sub section (1) of section 35 of the Insolvency and Bankruptcy Code, 2016 read with clause (a) sub regulation (3) of regulation 45 of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016 stating that since the corporate debtor has been sold as a Going Concern and the Applicanthas submitted the final report along with the compliance certificate in Form H the closure of the liquidation process of the corporate debtor is allowed without dissolution of the corporate debtor

b. Pass such further and other orders and directions as the nature and circumstances of the case may require and as this Hon'ble Tribunal may deem fit and proper.

# 7. Submissions of the learned Counsel appearing on behalf of the Applicant

7.1.In accordance with regulation 12 of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016 (“Liquidation Regulations”), the Liquidator issued Public Announcement in Form B on 29 October 2021 in Business Standard (English) and Aajkal (Bengali).

7.2.The Applicant received various claims from the stakeholders and formed the Stakeholders Consultation Committee (“SCC”) with two Financial Creditors viz. CFM Asset Reconstruction Private Limited and Unity Small Finance Bank Limited.

7.3.The learned Counsel submitted that initially the secured Financial Creditors were not desirous of relinquishing security interest in the liquidation estate of the Corporate Debtor, however, on 17 May 20221 and 18 May 20222 , Unity Small Finance Bank Limited and CFM Asset Reconstruction Private Limited respectively, informed the Liquidator that it was unequivocally relinquishing security interest in the Liquidation estate of the Corporate Debtor.

7.4.In compliance of section 35 of the Code read with regulations 32, 32A and 33 of the Liquidation Regulations, the Liquidator issued a e-auction notice dated 19 August 2022 in two newspapers, viz., Business Standard [English] and Aajkal [Bengali] for sale of Sri Aranath Logistics Limited on “AS IS, WHERE IS, WHATEVER THERE IS AND WITHOUT RECOURSE BASIS” .

7.5.Two intending bidders viz. Udgam Commercial Limited and PNR Exim Private Limited deposited the EMD and participated in the e-auction. The e-auction was held on 05 September 2022. Udgam Commercial Limited having CIN: U51909WB1996PLC077433 emerged as the highest bidder for Rs.12,51,00,000/- (Rupees Twelve Crore Fifty-One Lakh only) under Option-1 being bid to purchase the Liquidation Estate of Sri Aranath Logistics Limited on “AS IS, WHERE IS, WHATEVER THERE IS AND WITHOUT RECOURSE BASIS”4 .

7.6.The e-auction of the liquidation estate of Sri Aranath Logistics Limited was unanimously approved by the Stakeholders Consultation Committee in the Eight meeting of the Stakeholders Consultation Committee held on 12 September 2022.

7.7.Udgam Commercial Limited submitted a bank draft of Rs.50,00,000/- (Rupees Fifty Lakh only) to the Liquidator on 03 September 2022 towards Earnest Money Deposit.

7.8.The Letter of Intent executed by Udgam Commercial Limited was submitted to the Liquidator.

7.9.The entire sale consideration of Rs.12,51,00,000/- (Rupes Twelve Crore Fifty- One Lakh only) along with interest of Rs.24,97,545.21 (Rupees Twenty Four Lakh Ninety Seven Thousand Five Hundred Forty Five and Twenty One Paise) was paid by the Successful Bidder between 05 December 2022 to 16 December 2022.

7.10. On receipt of the entire sale consideration of Rs.12,51,00,000/- (Rupes Twelve Crore Fifty- One Lakh only) along with interest of Rs.24,97,545.21 (Rupees Twenty Four Lakh Ninety Seven Thousand Five Hundred Forty Five and Twenty One Paise), the Liquidator has distributed the amount amongst the Stakeholders as per section 53 of the Code.

7.11. The Liquidator issued a Certificate of Sale on 22 December 2022 to the Successful Bidder.

7.12. The Liquidator has submitted his Final Report as per regulation 45 of the Liquidation Process Regulations and Form H , i.e., Compliance Certificate under regulation 45(3) of the Liquidation Process Regulations.

7.13. The learned Counsel submitted that the successful bidder is entitled to the Liquidation estate of SRI Aranath Logistics Limited with a clean slate without being burdened with any pre-CIRP liabilities of the Corporate Debtor. In support of the above, he placed reliance on the following judgments:

• a. Kashvi Power & Steel Private Limited and Anr. V. West Bengal State Electricity Distribution Company Limited & Ors., W.P. A. No. 6327 of 2022, (para 63) passed by the Hon’ble High Court.

• b. Haryana State Industrial And Infrastructure Development Corporation Limited v. AAR AAR Technoplast Private Limited & Anr., Company Appeal (AT) (Ins.) No. 606 of 2021;

• c. Arun Kumar Jagatramka v. Jindal Steel and Power Limited & Anr., Civil Appeal No. 9664 of 2019 (para 67)

7.14. The learned Counsel in I.A. (IB) No. 1197/KB/2022 seeks approval of this Adjudicating Authority for sale of the Liquidation estate of Sri Aranath Logistics Limited on “AS IS, WHERE IS, WHATEVER THERE IS AND WITHUT RECOURSE BASIS” as a going concern as defined in regulation 32(e) of the Liquidation Regulations through open e-auction and other applicable regulations and entitle the Successful Highest Bidder to take over/ purchase the Liquidation estate of Sri Aranath Logistics Limited with a clean slate without being burdened with any pre-CIRP liabilities of the Corporate Debtor.

7.15. The learned Counsel in I.A. (IB) No. 177/KB/2023 seeks for closure of liquidation process of the Corporate Debtor. Analysis and Findings

# 8. We have heard the Ld. Counsel appearing on behalf of the Applicant and perused the records.

# 9. Whereas some of the prayers made in I.A. (IB) No. 1197/KB/2022 come within the purview of the Code and the Companies Act 2013. While many others fall under the power and jurisdiction of different government authorities/departments, prayer (c) and part prayer (e) in I.A. (IB) No. 1197/KB/2022 that pertains to other governmental authorities/departments shall be dealt with by the respective competent authorities/forums/offices, Government or Semi Government of the State or Central Government. Its ordered that the competent authorities including the Appellate authorities may consider the prayer (c) part prayer (e) keeping in view the spirit of the code (IBC 2016) in I.A. (IB) No. 1197/KB/2022.

# 10. Since, this is a ‘Going concern sale’ , the Successful Bidder shall make necessary applications to the concerned regulatory or statutory authorities for renewal of business permits and supply of essential services, if required, with all necessary forms along with filing fees etc. upon receipt of such application such authority shall  consider granting the same keeping in mind the objectives of the Code which is concerned with resolving of the insolvency of the Corporate Debtor.

# 11. With respect to prayer (b) of IA 1197, the waivers with regard to extinguishment of claims which arose Pre-CIRP and which have not been claimed are granted in terms of Ghanashyam Mishra and Sons Pvt Ltd v Edelweiss Asset Reconstruction Company Ltd wherein the Hon'ble Supreme Court has held that once a resolution plan is duly approved by the Adjudicating Authority under sub-section (1) of section 31, the claims as provided in the resolution plan shall stand frozen and will be binding on the Corporate Debtor and its employees, members, creditors, including the Central Govt, any State Govt or any local authority, guarantors and other stakeholders. On the date of approval of resolution plan by the Adjudicating Authority, all such claims, which are not a part of resolution plan, shall stand extinguished and no person will be entitled to initiate or continue any proceedings in respect to a claim, which is not part of the resolution plan. The Hon’ble Supreme Court also held that all the dues including the statutory dues owed to the Central Govt, any State Govt or any local authority, if not part of the resolution plan, shall stand extinguished and no proceedings in respect of such dues for the period prior to the date on which the Adjudicating Authority grants its approval under section 31 could be continued.

# 12. The Liquidator has already effected the sale and has distributed the sale proceeds, hence prayer (a) & (i) in I.A. (IB) No. 1197/KB/2022 are infructuous.

# 13. In view of the above facts and circumstances, we allow the closure of the Liquidation Process of the Corporate Debtor as sought for in I.A. (IB) No. 177/KB/2023.

# 14. The Liquidator shall stand discharged from his responsibilities, subject to procedural compliances.

# 15. IA (IB) No.1197/KB/2022, I.A. (IB) No. 177/KB/2023 and CP (IB) No. 676/KB/2023 shall stand disposed of accordingly.

# 16. The Registry is directed to send e-mail copies of the order forthwith to all the parties and their Ld. Counsel for information and for taking necessary steps.

# 17. A certified copy of this order may be issued, if applied for, upon compliance with all requisite formalities.

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Gayatri Polyrub Pvt. Ltd. v. Anil Kohli & Anr.- It is well settled that objective of the IBC is to revive the Corporate Debtor and liquidation is the last resort. In view of the aforesaid, we set aside order directing for liquidation and extend the CIRP for a period of 60 days from today to complete the process.

 NCLAT (03.10.2023) In Gayatri Polyrub Pvt. Ltd. v. Anil Kohli & Anr. [Company Appeal (AT) (Insolvency) No.650 & 657 of 2023 , & I.A. No. 2192 of 2023] held that;

• It is well settled that objective of the IBC is to revive the Corporate Debtor and liquidation is the last resort. In view of the aforesaid, we set aside order directing for liquidation and extend the CIRP for a period of 60 days from today to complete the process.

Excerpts of the Order;    

03.10.2023: These two Appeals have been filed against same order passed by the Adjudicating Authority dated 15.03.2023 by which application filed by Resolution Professional for liquidation has been allowed. These Appeals have been filed by both the Appellant stating that they were willing to give a higher offer but without considering their offer liquidation order has been passed.

# 2. When Company Appeal (AT) (Insolvency) No.657 of 2023 was taken on 26.05.2023 following order was passed:

“O R D E R

26.05.2023: Learned Counsel for the Appellant submits that these two appellants are resolution applicants whose plans were not approved and order for liquidation has been passed. The Appellant submits that both the Resolution Applicants were ready to enhance the plan value more than the liquidation value and no reasons have been given by the Committee of Creditors as to why their plans have been rejected.

Learned Counsel appearing for the CoC submits that plans were not approved with 100% votes and now the auction notice has been issued for sale as a going concern. Learned Counsel for the CoC submits that in event the appellants are still ready to offer higher value than the reserve price, instructions shall be obtained from CoC.

Let the Appellants give their offer to the Liquidator.

List these Appeals on 5th July, 2023. Learned Counsel for the Committee of Creditors may bring on record all minutes of the CoC meeting. In view of the above, Liquidator shall not proceed to auction the asset till the next date.”

# 3. In subsequent order passed by this Tribunal on 20.09.2023, Counsel for the CoC informed that Mr. Harish Manocha has submitted a revised offer along with EMD and however, no revised offer has been submitted by Gayatri Polyrub Pvt. Ltd. By order dated 20.09.2023, time was allowed to file an affidavit by CoC. The CoC has now filed an affidavit where it has been stated that the comparison table of both offers have been given and in Para 14 following has been stated:

• “14. After taking into consideration the latest offer dated 04.08.2023 as submitted by the Appellant 1 and offer dated 08.07.2023 as submitted by the Appellant 2 on 10.07.23, the Respondent No.1 finds that offer made by Appellant 1 is acceptable if this Hon’ble Appellate Tribunal permits for the withdrawal of liquidation process and extends the time for CIRP. That once the CIRP is restored, CoC finds the offer made by Appellant 1 shall be acceptable as it will in fact help in maximising the yield out of resolution process initiated against the Corporate Debtor.”

# 4. Learned counsel for the CoC submits that the revised offer submitted by Mr. Harish Manocha needs to be considered by the CoC provided the Court permits withdrawal of the liquidation process and extending the time for CIRP. It is further submitted that the offer given by Mr. Harish Manocha is more than the liquidation value.

# 5. In view of the facts of the present case, we are of the view that ends of justice be served in giving one opportunity to the CoC to consider the Plan/Revised Offer and take decision on the said offer.

# 6. It is well settled that objective of the IBC is to revive the Corporate Debtor and liquidation is the last resort. In view of the aforesaid, we set aside order directing for liquidation and extend the CIRP for a period of 60 days from today to complete the process.

# 7. It is made clear that in event Resolution Plan is approved, an application be filed for approval of the plan before Adjudicating Authority. In event, Resolution Plan is not approved, the Resolution Professional shall immediately file application for liquidation.

# 8. Learned counsel for the CoC submits that only Revised Offer has been submitted by Mr. Harish Manocha and no revised offer has been submitted by Gayatri Polyrub Pvt. Ltd. We, thus, make it clear that CoC shall consider only Revised Offer submitted by Mr. Harish Manocha.

# 9. Both the Appeals are disposed of accordingly.

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Kanwal Goyal, Liquidator V/s. Uttar Haryana Bijli Vitran Nigam Limited - Under the provisions of the IBC, this refund is a part of the liquidation estate of the corporate data as defined in Section 36 of the code, and the liquidator has the right to recover the same and hold it as a fiduciary for the benefit of all the creditors.

 NCLT Chandigarh (14.09.2023) In Kanwal Goyal, Liquidator V/s. Uttar Haryana Bijli Vitran Nigam Limited [IA No. 491 of 2021 In CP(IB) No.128/Chd/Hry/2017] held that;

• Under the provisions of the IBC, this refund is a part of the liquidation estate of the corporate data as defined in Section 36 of the code, and the liquidator has the right to recover the same and hold it as a fiduciary for the benefit of all the creditors.

Excerpts of the Order;    

The present application has been filed by Mr. Kanwal Goyal, liquidator against respondents i.e. Uttar Haryana Bijli Vitran Nigam Limited, the Chief Engineer Commercial and the Sub Divisional Officer (Operations) under section 60(5) of the Insolvency and Bankruptcy Code,2016 for directing respondent Nos.1 and 3 to refund the security deposit amount of Rs. 68,79,075/- alongwith interest @12% per annum for the disconnected electricity connection.

# 2. The brief facts of the case are that vide order dated 08.02.2018, Sh. Kanwal Goyal was appointed as Interim Resolution Professional and on 17.10.2019, was appointed as Liquidator. The corporate debtor was originally incorporated under the name and style of Om Overseas and was later converted into a company by the name Om Sakk(India) Industries Limited and later name was changed to Osil Exports Limited. The corporate debtor obtained an electricity connection vide account No. P22LS010046L in the name of Om Overseas and deposited the security amount. The liquidator vide letter dated 16.11.2018 requested respondents to disconnect the electricity connection and to refund an amount of Rs. 68,79,075/- paid towards the security deposit. The respondents served a legal notice to respondents on 30.06.2020 for a refund of the security amount along with interest. On 08.08.2020 a final notice was served to respondents by the liquidator for a refund of the security amount. On 28.12.2020 the Corporate Debtor received a letter from the respondents whereby it was intimated to the Corporate Debtor that the amount of Rs, 35,87,003/- for security refund case has been sent to the Xen of UHBVN Samalkha vide their office memo no. 4178 dated 16.12.2020. It is submitted that the electricity connection was taken by the Corporate Debtor long back and the applicant is not able to trace out the receipt of the security amount deposited from the records, however, as per the audited balance sheet of the Corporate Debtor for the year ending on 31.03.2018, an amount of Rs. 68,79,075/- has been deposited towards the security with the electricity department i.e. respondents, hence the Liquidator is duty bound and has every right to recover the said amount from the respondents as per the provisions of Insolvency and Bankruptcy Code, 2016.

# 3. The reply was filed vide Diary No. 00925/2 dated 14.02.2022, wherein it is stated that the applicant has not availed statutory remedy for seeking refund of ACD. The application submitted by the applicant an amount of Rs. 59,40,480/- was found to be refundable an account of ACD. It is stated that the amount of Rs.34,05,003/- has already been refunded vide cheque no. 460911 dated 18/08/2021 after deducting the outstanding amount of Rs.9,69,997/- out of Rs.59,40,480/-. Therefore the amount claimed in the present petition is erroneous, however, the amount of that is to be refunded is Rs.15,65,480/-.

# 4. The rejoinder was filed vide Diary No. 00925/3 dated 28.02.2022, wherein it is stated that the applicant is trying to the shape of present case towards consumer dispute. The respondents did not reply to the legal notices and later admitted to returning the security deposit of Rs. 35,87,003/-. The liquidator has admitted that the respondents have refunded the amount of Rs. 34,05,003/-. The respondents have not placed on record a single document to prove their contention that the amount is due and outstanding.

# 5. The short written submissions were filed by the liquidator vide Diary No. 00925/4 dated 26.08.2022 wherein it is stated that as per Memo No. 4303 dated 28.12.2020, the amount of Rs. 35,87,003/- has been refunded (vide Cheque dated 18.08.2021). It is stated that the respondents admitted in its reply that the original amount of the security refund was Rs. 59,40,480/-. It is further stated by the respondents that no details have been provided regarding the outstanding amount of Rs. 9,69,997/- from the corporate debtor. In the short written submissions were filed by respondent No. 1 vide special Diary No. 207 dated 23.09.2022 wherein it is stated that the applicant has remedy to file the application before the Consumer Grievances Redressal Forum.

# 6. We have heard the learned counsels for the applicant as well as the respondents and have carefully perused the available records. We noted that in the present case, the respondents have admitted that there was a refundable deposit of Rs. 59,40,480/-, out of which Rs. 34,05,003/- has been refunded, and amount of Rs.9,69,997/- has been adjusted against existing liability. It is therefore an admitted fact that an amount of Rs.15,65,480/- is still outstanding to be paid to the corporate debtor. Even after assuming that the adjustments made by the respondents order as per the provisions of the relevant Laws. We therefore, see no justification for asking the corporate debtor to make use of the grievance cell of the respondents to get the undisputed Refund of Rs.15,65,480/-. Under the provisions of the IBC, this refund is a part of the liquidation estate of the corporate data as defined in Section 36 of the code, and the liquidator has the right to recover the same and hold it as a fiduciary for the benefit of all the creditors. In view of the same, the respondents are directed to refund the amount of Rs.15,65,480/- to the applicant within 15 days of this order. As regards the adjustment of Rs. 68,79,075/- towards the existing liability of the corporate debtor, the latter can approach the consumer grievance redressal forum, if so advised.

7. In the result, IA No. 491/2021 is partly allowed and stands disposed ofaccordingly.

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Gayatri Polyrub Pvt. Ltd. Vs. Anil Kohli & Anr. - NCLAT rescinded the Liquidation orders as CoC received resolution applicant’s revised offer exceeding the reserve price.

 NCLAT (03.10.2023) In Gayatri Polyrub Pvt. Ltd. Vs. Anil Kohli & Anr. [Company Appeal (AT) (Insolvency) No.650 & 657 of 2023 with  I.A. No. 2192 of 2023] rescinded the Liquidation orders as CoC received  resolution applicant’s revised offer exceeding the reserve price.

Excerpts of the Order;    

03.10.2023: These two Appeals have been filed against same order passed by the Adjudicating Authority dated 15.03.2023 by which application filed by Resolution Professional for liquidation has been allowed. These Appeals have been filed by both the Appellant stating that they were willing to give a higher offer but without considering their offer liquidation order has been passed.

# 2. When Company Appeal (AT) (Insolvency) No.657 of 2023 was taken on 26.05.2023 following order was passed:

• “O R D E R

• 26.05.2023: Learned Counsel for the Appellant submits that these two appellants are resolution applicants whose plans were not approved and order for liquidation has been passed. The Appellant submits that both the Resolution Applicants were ready to enhance the plan value more than the liquidation value and no reasons have been given by the Committee of Creditors as to why their plans have been rejected.

• Learned Counsel appearing for the CoC submits that plans were not approved with 100% votes and now the auction notice has been issued for sale as a going concern. Learned Counsel for the CoC submits that in event the appellants are still ready to offer higher value than the reserve price, instructions shall be obtained from CoC.

• Let the Appellants give their offer to the Liquidator.

• List these Appeals on 5th July, 2023. Learned Counsel for the Committee of Creditors may bring on record all minutes of the CoC meeting. In view of the above, Liquidator shall not proceed to auction the asset till the next date.”

# 3. In subsequent order passed by this Tribunal on 20.09.2023, Counsel for the CoC informed that Mr. Harish Manocha has submitted a revised offer along with EMD and however, no revised offer has been submitted by Gayatri Polyrub Pvt. Ltd. By order dated 20.09.2023, time was allowed to filed an affidavit by CoC. The CoC has now filed an affidavit where it has been stated that the comparison table of both offers have been given and in Para 14 following has been stated:

• “14. After taking into consideration the latest offer dated 04.08.2023 as submitted by the Appellant 1 and offer dated 08.07.2023 as submitted by the Appellant 2 on 10.07.23, the Respondent No.1 finds that offer made by Appellant 1 is acceptable if this Hon’ble Appellate Tribunal permits for the withdrawal of liquidation process and extends the time for CIRP. That once the CIRP is restored, CoC finds the offer made by Appellant 1 shall be acceptable as it will in fact help in maximising the yield out of resolution process initiated against the Corporate Debtor.”

# 4. Learned counsel for the CoC submits that the revised offer submitted by Mr. Harish Manocha needs to be considered by the CoC provided the Court permits withdrawal of the liquidation process and extending the time for CIRP. It is further sub mitted that the offer given by Mr. Harish Manocha is more than the liquidation value.

# 5. In view of the facts of the present case, we are of the view that ends of justice be served in giving one opportunity to the CoC to consider the Plan/Revised Offer and take decision on the said offer.

# 6. It is well settled that objective of the IBC is to revive the Corporate Debtor and liquidation is the last resort. In view of the aforesaid, we set aside order directing for liquidation and extend the CIRP for a period of 60 days from today to complete the process.

# 7. It is made clear that in event Resolution Plan is approved, an application be filed for approval of the plan before Adjudicating Authority. In event, Resolution Plan is not approved, the Resolution Professional shall immediately file application for liquidation.

# 8. Learned counsel for the CoC submits that only Revised Offer has been submitted by Mr. Harish Manocha and no revised offer has been submitted by Gayatri Polyrub Pvt. Ltd. We, thus, make it clear that CoC shall consider only Revised Offer submitted by Mr. Harish Manocha.

# 9. Both the Appeals are disposed of accordingly.

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