Samith R. Arasa Vs. Bijendra Kumar Agarwal - As rightly contended by the learned Liquidator this Tribunal has no jurisdiction or power to grant liquidated damages to the Respondent as a Civil Court and the appropriate remedy available to the Petitioner is to approach a competent legal forum.

 NCLT Mumbai-III (2022.10.04) in Samith R. Arasa Vs. Bijendra Kumar Agarwal [(2022) ibclaw.in 838 NCLT, “I.A. No. 1573 of 2021 In C.P. No. 1118 of 2019”] held that;

• As rightly contended by the learned Liquidator this Tribunal has no jurisdiction or power to grant liquidated damages to the Respondent as a Civil Court and the appropriate remedy available to the Petitioner is to approach a competent legal forum.

•  All the above issues have to be raised by the Petitioner before a competent Civil Court by letting proper oral and documentary evidence and this Tribunal being not a Civil Court is not empowered to decide all the above contentions of the Petitioner in an Application of this nature.

Excerpts of the Order;

# 1. This Interlocutory Application is filed by Samith R. Arasa, Applicant against Resolution Professional Mr. Birendra Kumar Agrawal of Suwarnsparsh Gems & Jewellery Ltd. Are praying the following reliefs:

• a. The interlocutory Application for mentioning the company Petition may be allowed;

• b. The Hon’ble Tribunal be pleased to direct the Liquidator to forthwith accept the claim of the Applicant to the extent of Rs. 3,13,58,500/-(Rs Three Crores Thirteen Lakhs Fifty Eight Thousand Five Hundred only).

• c. The Hon’ble Tribunal be pleased to direct the Liquidator to forthwith accept the claim of the Applicant to the extent of Rs. 87,25,000/- (Rupees Eighty Seven Lakhs Twenty Five Thousand only) i.e. the rent due and payable to the Applicant from the date of the moratorium till 05.11.2020 may be included in the insolvency Resolution Process Cost;

• d. The Hon’ble Tribunal be pleased to direct the Liquidator to make the payments of the amounts as mentioned in (b) and /or (c) due to the Applicant; at the earliest;

• e. Pending the hearing and final disposal of this application, the Liquidator may be directed to pay the admitted claim of Rs. 23,73,500/- to the Applicant;

• f. Pending the hearing and final disposal of this application, the Liquidator may be directed not to proceed with the liquidation process;

• g. To pass any such Order or Orders as this Hon’ble Tribunal may deem fit and expedient;

# 2. Brief submissions of the Applicant are as follows:

i. The Applicant submitted that, The Applicant and CD had entered into Leave and License Agreement on 16th December 2015 to use and occupy the Shop Nos. 11 and 11A situated at Rajhans Hotel Bldg, 15/16, N.G. Acharya Marg, Chembur, Mumbai – 400 071 for the period from 01.04.2015 to 04.04.2017 for a compensation of Rs. 75,000/- per month. Further, Clause 17 of the said Leave and Licence Agreement also stipulates a compensation of Rs. 25,000/- per day to be paid to the Applicant by the CD on the failure to vacate the premises on 04.04.2017.

ii. The Applicant states that Company Petition was admitted on 22.10.2019 and thus CIRP was initiated against the CD.

iii. The Applicant further submits that his claim was filed before the IRP of Rs. 2,26,33,500/-. The IRP was pleased to accept the claim of the Applicant to the extent of Rs. 16,73,500/- vide letter dated 04.02.2020.

iv. The Applicant states that despite the expiry of the term of the leave and licence on 04.04.2017, the CD continued to be in unlawful and illegal occupation of the Shop No. 11 till the Applicant moved this bench vide IA No. 856 of 2020 in the present company Petition subsequent to which the said Shop No. 11 was vacated by the RP on 05.11.2020. As a result of this the Applicant has faced huge losses and irreparable harm.

v. The Applicant also mentions that on the Application filed by the RP, this bench was pleased to initiate the Liquidation Process vide Order dated 15.02.2021.

vi. The Applicant further contented that on requesting the Liquidator to accept full claim of the Applicant including the amount of Rs. 25,000/- per day from 05.04.2017 till 05.11.2020, however the said claim has not been accepted by the Liquidator. The Liquidator has only accepted the claim to the extent of Rs. 23,73,500/- being the rent amount of Rs. 75,000/- per month not paid to the Applicant.

# 3. The Liquidator has filed a detailed reply as well as written submissions, strongly opposing the above Application.

# 4. Heard the arguments on both sides and examined the relevant record.

# 5. After hearing the submissions and upon examining the relevant record this Bench observes that the Petitioner and the Corporate Debtor have entered into a registered Lease Agreement dated 16.12.2015 for a period of two years commencing from 01.04.2015 to 04.04.2017 on a monthly rent of Rs. 75,000/- per month in respect of two shops bearing no. 11 and 11A situated in Rajhans Hotel Building, 15/16, M.G. Acharya Marg, Chembur, Mumbai. Belonging to the Petitioner and there is no dispute between the parties with regard to the ownership, duration of lease and the amount of rent.

# 6. It is also observed that the Corporate Debtor himself vacated shop bearing no. 11A much prior to the expiry of the license period under the agreement and was using only shop bearing no. 11 till it was vacated by the Resolution Professional on 05.11.2020.

# 7. This Bench also observes that the Resolution Professional has admitted the claim to an extent of Rs. 16,73,500/- against the net claim of Rs. 2,26,33,500/- put forth by the Petitioner during the course of CIRP period.

# 8. It has been also observed that the Petitioner has subsequently submitted a claim of Rs. 3,13,58,500/- claiming compensation to damages at the rate of Rs. 25,000/- per day after passing Liquidation Order of the Corporate Debtor out of which an amount of Rs. 23,73,500/- was accepted by the Liquidator.

# 9. Since the Petitioner is claiming liquidated damages at the rate of Rs. 25,000/- per day, the only question that needs to be decided is

• 1. Whether the Petitioner is entitled to claim liquidated damages at the rate of Rs. 25,000/- per day before this tribunal through the above Interlocutory Application?

# 10. It has been observed that the Respondent did not take any legal action before the commencement of CIRP against the Corporate Debtor before any appropriate Court even though the license period was expired on 04.04.2017 by efflux of time.

# 11. As rightly contended by the learned Liquidator this Tribunal has no jurisdiction or power to grant liquidated damages to the Respondent as a Civil Court and the appropriate remedy available to the Petitioner is to approach a competent legal forum. It is also appropriate to observe here that the Corporate Debtor has taken two shops on lease and had vacated shop bearing no. 11A much prior to the completion of license period and therefore the Corporate Debtor is entitled for proportionate reduction of rent for the unexpired license period in respect of the shop vacated by the Corporate Debtor. However, the Liquidator has allowed the entire amount of admitted rent till the date of vacation as per the agreement without deducting proportionate rent for shop no. 11A.

# 12. The Petitioner is claiming the above amount of Rs. 3,13,58,500/- on the ground that the similar size shops in the same premises are usually let out and earned approximately Rs. 1,00,000/- per month and due to illegal possession of the Corporate Debtor well beyond the expiry of period of leave and license the Applicant has incurred heavy opportunity cost and financial losses without any fault on his part. All the above issues have to be raised by the Petitioner before a competent Civil Court by letting proper oral and documentary evidence and this Tribunal being not a Civil Court is not empowered to decide all the above contentions of the Petitioner in an Application of this nature.

# 13. Therefore, for the aforesaid reasons, this Bench is of the considered view that there is no illegality or irregularity committed by the Liquidator in rejecting the claim of the Petitioner beyond the admitted rent and the above Application is nothing but an afterthought and is liable to be rejected.

# 14. Accordingly, the above Interlocutory Application is dismissed by confirming the action of the Liquidator.

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Mandatory Use of eBKray Auction Platform for Liquidation Processes

                                                Insolvency and Bankruptcy Board of India

7th Floor, Mayur Bhawan, Connaught Place, New Delhi-110001

CIRCULAR

No. IBBI/LIQ/81/2025                                                                10th January, 2025

To

All Registered Insolvency Professionals

All Recognised Insolvency Professional Entities

All Registered Insolvency Professional Agencies

(By mail to registered email addresses and on the website of the IBBI)

Dear Madam/Sir,

Subject: Mandatory Use of eBKray Auction Platform for Liquidation Processes

In continuation of efforts to streamline the liquidation process and improve transparency, the Insolvency and Bankruptcy Board of India (IBBI), through circular No. IBBI/LIQ/78/2024 dated 29th October 2024, issued directions regarding the use of the eBKray auction platform.

2. The IPs were, inter-alia, directed that they shall exclusively list the details of all the unsold assets in respect of the ongoing liquidation processes on the eBKray platform and that they may utilize the eBKray auction platform for the sale of assets in respect of ongoing cases for auctions.

3. The platform has received an encouraging response since its introduction. To date, 210 assets have been listed, and 25 auctions have been scheduled or conducted on the platform. The platform is presently running on a pilot mode and will be improved based on the experiences of usage.

4. In this regard, all IPs handling liquidation processes are hereby directed to exclusively use the eBKray auction platform for conducting auctions for sale of assets during the liquidation process with effect from 1st April 2025. It is further directed that listing of unsold assets in all ongoing liquidation cases shall be completed by 31st March 2025.

5. This is issued in exercise of the powers conferred under section 196 of the Insolvency and Bankruptcy Code, 2016.

Yours faithfully,

-Sd-

(Rajesh Tiwari)

General Manager

Kannan Tiruvengadam (Liquidator) Vs. Assets Care & Reconstruction Enterprise Ltd. and Ors. - Since the CoC did not fix the Liquidator’s remuneration at the time of recommending liquidation under Section 33 of the Code, as envisaged under Regulation 39D of the CIRP Regulations, and further, the SCC also failed to fix the fee in its first meeting as required under Regulation 4(1A) of the Liquidation Regulations, the Liquidator shall be entitled to remuneration strictly in terms of Regulation 4(2) of the Liquidation Regulations.

 NCLAT (2025.10.15) in Kannan Tiruvengadam (Liquidator) Vs. Assets Care & Reconstruction Enterprise Ltd. and Ors. [(2025) ibclaw.in 860 NCLAT, Company Appeal (AT) (Insolvency) No. 1574 of 2025 & I.A. No. 6190, 6192 of 2025] held that;

• Since the CoC did not fix the Liquidator’s remuneration at the time of recommending liquidation under Section 33 of the Code, as envisaged under Regulation 39D of the CIRP Regulations, and further, the SCC also failed to fix the fee in its first meeting as required under Regulation 4(1A) of the Liquidation Regulations, the Liquidator shall be entitled to remuneration strictly in terms of Regulation 4(2) of the Liquidation Regulations. 

• Accordingly, the Liquidator’s fee shall be calculated only as a percentage of the amount realised (net of other liquidation costs) and distributed during the liquidation process, and not by way of a fixed monthly fee.

Excerpts of the Order;

15.10.2025:

I.A. No. 6192 of 2025: This is an application praying for condonation of 9 days’ delay in filing the appeal. We find sufficient cause shown in the application for condonation of delay. Delay condoned. I.A. No.6192 of 2025 is disposed of.

# 2. I.A. No. 6190 of 2025: This is an application praying for condonation of delay of 36 days. Learned counsel for the Appellant submits that after defect list was issued on 03.09.2025, counsel started collating the documents for refiling. Appeal being voluminous in nature the documents required to be collated and shared. We find sufficient cause shown in the application for condonation of delay. Refiling delay is condoned. I.A. No.6190 of 2025 is disposed of.

# 3. This appeal has been filed by the Appellant – the Liquidator challenging the order dated 04.07.2025 by which I.A. No. 155/GB/2024 filed by the Liquidator for payment of fee of Rs.2.5 Lakhs per month with other prayers has been rejected. The Adjudicating Authority by the impugned order has rejected the application, aggrieved by which order this appeal has been filed.

# 4. Shri Rishabh Banerjee, learned counsel for the Liquidator submits that the Liquidator submitted a proposal for payment of fee was placed before the Stakeholders’ Consultation Committee (SCC), which was not approved. He further submitted that assets of the Corporate Debtor were attached by the Directorate of Enforcement prior to commencement of CIRP and Appellant has taken steps for revocation of attachment, hence, he is entitled for payment of fee. He has referred to Regulation 4 of IBBI (Liquidation Process) Regulations, 2016.

# 5. We have considered the submissions of learned counsel for the Appellant and perused the record.

# 6. Admittedly, the fee of the Liquidator has not been approved by the SCC or the CoC. The case of the Appellant at best falls under Regulation 4 Sub-regulation (2) (b), which is as follows:

• “4(2) In cases other than those covered under sub- regulation (1) [and (1A)], the liquidator shall be entitled to a fee-

• (b) as a percentage of the amount realised net of other liquidation costs, and of the amount distributed, for the balance period of liquidation, as under:

Amount of Realisation / Distribution (In rupees)	Percentage of fee on the amount realized / distributed
	in the first six months	in the next six months	thereafter
Amount of Realisation (exclusive of liquidation costs)
On the first 1 crore	5	3.75	1.88
On the next 9 crore	3.75	2.80	1.41
On the next 40 crore	2.50	1.88	0.94
On the next 50 crore	1.25	0.94	0.51
On further sums realized	0.25	0.19	0.10
Amount Distributed to Stakeholders
On the first 1 crore	2.50	1.88	0.94
On the next 9 crore	1.88	1.40	0.71
On the next 40 crore	1.25	0.94	0.47
On the next 50 crore	0.63	0.48	0.25
On further sums distributed	0.13	0.10	0.05

[Clarification: For the purposes of clause (b), it is hereby clarified that where a liquidator realises any amount, but does not distribute the same, he shall be entitled to a fee corresponding to the amount realised by him. Where a liquidator distributes any amount, which is not realised by him, he shall be entitled to a fee corresponding to the amount distributed by him.]

# 7. The fact is not disputed that the Appellant could not realize any assets nor could distribute any assets to the stakeholders. The fee entitlement as per Regulation 4 Sub-regulation (2) (b) is on the percentage of the amount realised or distributed net of other liquidation costs. When the Appellant has not realised any assets not distributed any assets, we fail to see as to how any error has been committed by the Adjudicating Authority in rejecting such prayer of the Appellant. The Adjudicating Authority in the impugned order after noticing the facts of the matter and submissions of the parties has rightly come to the conclusion and rejected the prayers of the Appellant.

# 8. Learned counsel for the Appellant has lastly contended that the CoC has fixed the fee for Liquidator who was recommended by the CoC but the Adjudicating Authority had rejected the recommendation of the CoC and appointed the Appellant, thus, he was entitled for the fee.

# 9. In Para 14 of the impugned order the Adjudicating Authority has made following observations:

• “14. In the present case, since the CoC did not fix the Liquidator’s remuneration at the time of recommending liquidation under Section 33 of the Code, as envisaged under Regulation 39D of the CIRP Regulations, and further, the SCC also failed to fix the fee in its first meeting as required under Regulation 4(1A) of the Liquidation Regulations, the Liquidator shall be entitled to remuneration strictly in terms of Regulation 4(2) of the Liquidation Regulations. Accordingly, the Liquidator’s fee shall be calculated only as a percentage of the amount realised (net of other liquidation costs) and distributed during the liquidation process, and not by way of a fixed monthly fee.”

# 10. The finding of the Adjudicating Authority that the CoC did not fix the present Liquidator’s remuneration at the time of recommending liquidation, is not disputed fact. The SCC admittedly did not fix the fee of the Liquidator. We, thus, are of the view that on the said submission, the Appellant could not claim that his application for fixation of fee of Rs.2.5 Lakhs per month ought to have been allowed. We do not find any merit in the Appeal. Appeal is dismissed.

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