Shreesha Merla ORDER
(Virtual Mode)
1. Heard Learned Counsel for the Appellant and Respondent.
2. This Appeal has been filed against the Order dated 25th April, 2022 passed by the Adjudicating Authority (National Company Law Tribunal, New Delhi, Principal Bench) in I.A. No. 3153 of 2021, I.A. No. 5255 of 2021 and I.A. No. 4317 of 2021. The Appellant is the Auction Purchaser whose bid was accepted on 03rd June, 2021 in E-Auction. The earnest money of 7.3 crores was deposited on 31st May, 2021 and Bid of 73.01 Crores was submitted and he was declared to be Successful Bidder. Liquidator asked the Appellant to deposit the sale consideration by 10th June, 2021 and further balance by 3rd July, 2021. Appellant deposited Rs. 10,95,25,000/- on 10th and 11th June, 2021. The term sheet was executed between the parties for sale of Corporate Debtor as a going concern on 15th June, 2021 in which 3rd July, 2021 date was fixed as timeline for payment of balance amount of Rs. 54,75,75,000/- whereas after 3rd July, 2021 payment of the balance amount of Rs. 54,75,75,000/- with interest at the rate of 12% on or before 1st September, 2021. Appellant did not deposit the balance amount and I.A. No. 3153 of 2021 was filed by the Appellant wherein prayers contained 'a' to 'z'. It shall be sufficient to notice only prayer 'a' out of 'a' to 'z' which is as follows:
"(a) allow the Applicant to pay/adjust the Sale consideration in the following matter (i) INR 50 Crore/- by way of investment into the equity shares of the Corporate Debtor; and (ii) the balance amount of INR 23 Crore/- in the form of Optionally Convertible Debentures;"
3. The Appellant having not made the payment by 1st September, 2021, which was the timeline when 90 days was expiring, the Liquidator filed an Application I.A. No. 5255 of 2021 wherein making following prayers:
"a). Allow the present application and permit the Liquidator i.e. the Applicant to cancel the sale of Corporate Debtor as a going concern in view of the failure of Respondent to make payment in terms of 2nd proviso to Clause 1(12) under Schedule I of the Liquidation Process Regulations, 2016; and
b). Consequentially, grant further time to the Applicant to conduct a fresh E-Auction in the matter of the Corporate Debtor as a going concern, which is in the interest of the Stakeholders and for maximization of value of assets of the Corporate Debtor under Regulation 32A of the Liquidation Process Regulations, 2016;
c). Pass any other or such further order(s) as may be deem fit and necessary in the facts and circumstances of the case;"
4. The Adjudicating Authority heard the parties and after considering the submissions, noticing the entire facts and circumstances in paragraphs 2 and 3 of the Judgment and also noticed that on failure of payment by the Appellant, emails were sent by the Liquidator. I.A. No. 3153 of 2021 was filed on 21st July, 2021 and subsequently I.A. No. 5255 of 2021 was filed by the Liquidator. The Adjudicating Authority has allowed the I.A. filed by the Liquidator and observed that Adjudicating Authority is left with no option but to allow the Application of Liquidator cancelling the sale of the Corporate Debtor in favour of the Auction Purchaser, in view of the failure of Auction Purchaser to make payment in terms of 2nd proviso to Clause 1(12) under Schedule I of the Liquidation Process Regulations, 2016.
5. Learned Counsel for the Appellant submits that I.A. No. 3153 of 2021 was pending and the Adjudicating Authority could have rejected the Application but the said application was kept pending. He further submits that prayers which were made in I.A. No. 3153 of 2021 some of the prayers were granted by the Adjudicating Authority in other cases. Learned Counsel for the Appellant lastly submits that he should be given some time to make deposit as the Appellant has already deposited substantial amount.
6. Learned Counsel for the Liquidator refuting the submissions of the Learned Counsel for the Appellant contends that the Adjudicating Authority has granted sufficient latitude to the Appellant and granted ext........