C.A. Jasin Jose Vs. Directorate of Enforcement & Anr.. - In the above circumstances, there will be an interim direction to lift the attachment effected by the Enforcement Directorate on the properties which are subject matter of the liquidation to facilitate the Liquidator to sell the properties.

 HC Kerala (2024.04.12) in C.A. Jasin Jose Vs. Directorate of Enforcement & Anr.. [(2024) ibclaw.in 344 HC, W.P. (C) No.25934 of 2022 ] held that; 

• In the above circumstances, there will be an interim direction to lift the attachment effected by the Enforcement Directorate on the properties which are subject matter of the liquidation to facilitate the Liquidator to sell the properties. 

• The above order is on a condition that the Liquidator shall ensure that the proceeds of the sale are retained in the account and the attachment which had been ordered by the Enforcement Directorate will continue to be effective on the said proceeds of the sale.

Excerpts of the order;

The petitioner is the Liquidator of M/s. Atlas Gold Township (India) Private Limited, which is corporate debtor in the proceedings before the National Company Law Tribunal (NCLT). Liquidation proceedings have already been initiated. Pending the liquidation proceedings, the property has been attached at the instance of the Enforcement Directorate. The Liquidator has approached this Court stating that the Liquidator is not able to proceed because of the attachment and the entire proceedings before the NCLT has effectively come to a stand-still. The petitioner hence requests for an interim order permitting the sale to take place as part of the liquidation process, after lifting the attachment order issued by the Enforcement Directorate. 

2. Reliance is placed on the judgments of the High Court of New Delhi in Rajiv Chakraborty Resolution Professional of  EIEL v. Directorate of Enforcement [2022 SCC OnLIne Del.3703] and that of the High Court of Gujarat in AM Mining India Private Limited v. Union of India (Special Civil Application No.808 of 2023) to submit that the where the insolvency proceedings had been started even before the attachment is ordered by the Enforcement Directorate, the proceedings before the NCLT will have to prevail over the proceedings of the Enforcement Directorate. The Court had interpreted the non obstante clause in the two enactments. I do not propose to go into the merits of the said contention. However, I am of the opinion that the interest of the parties can be safe guarded pending this litigation by permitting the sale to go on and ensuring that the proceeds of the sale shall be liable for attachment by the Enforcement Directorate. 

In the above circumstances, there will be an interim direction to lift the attachment effected by the Enforcement Directorate on the properties which are subject matter of the liquidation to facilitate the Liquidator to sell the properties. The above order is on a condition that the Liquidator shall ensure that the proceeds of the sale are retained in the account and the attachment which had been ordered by the Enforcement Directorate will continue to be effective on the said proceeds of the sale. The representatives of the Enforcement Directorate will also be kept informed of the details of the proposed sale. This order is also justified in view of the interim order which have been issued by the Hon’ble Supreme Court in Ashok Kumar Sarawagi v. Enforcement Directorate and Another [SLP(C) No. 30092 /2022]. 

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Mr. Palaniappan Vs. The Joint Director, Directorate of Enforcement, - The concept of ‘Attachment’ made as per Section 5 (1) of the Prevention of Money Laundering Act, 2002 cannot be a subject matter of proceedings under Section 60(5) of the code, in a way making it clear that this Adjudicating Authority is not the right ‘FORA’ to deal with revocation of attachment made under the PMLA, Act, 2002.

 NCLT Chennai-2 (2024.01.25) in Mr. Palaniappan Vs. The Joint Director, Directorate of Enforcement, [MA/30(CHE)/2021 In CP/129(IB)/2018] held that;

• The concept of ‘Attachment’ made as per Section 5 (1) of the Prevention of Money Laundering Act, 2002 cannot be a subject matter of proceedings under Section 60(5) of the code, in a way making it clear that this Adjudicating Authority is not the right ‘FORA’ to deal with revocation of attachment made under the PMLA, Act, 2002. 

• Thereby, making it obvious that a remedy under PMLA act cannot be claimed before this Adjudicating Authority under the IBC, 2016 Code.

Excerpts of the order;

# 1. Under consideration is an Application filed under Section60(5) of Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as ‘the code’) by the Applicant, the Liquidator of M/s. Nathella Sampath Jewelry Private Limited (hereinafter referred to as ‘the Corporate Debtor’) against the Joint Director, Directorate of Enforcement seeking reliefs as follows,

a) The Hon'ble Tribunal may be pleased to pass appropriate orders setting-aside/recalling/vacating the provisional attachment Order dated 31st July 2018 bearing No11/2018 in ECIR/CEZO- 1/09/2018 Chennai Zone-I against the asset of the Corporate Debtor and Guarantors and other assets including those purchased out of the proceeds of crime/misuse of funds obtained from the lenders as referred under Schedule I & II (37 immovable properties) of the said provisional attachment Order dated 31 July 2018, as the case may be, and vest such rights in the hands of the Applicant/Liquidator.

b) That the Hon'ble Tribunal may direct the Respondent to provide inter- alia all relevant information and documents already gathered by the Respondent during their search exercise, as may be required by the Applicant in conducting the liquidation proceedings, as the case may be;

c) That the Hon'ble Tribunal direct the Respondent not to take any action that would disrupt the recovery proceedings under the provisions of the Code;

d) Any other orders as this Hon'ble Tribunal may deem fit and proper in the circumstances of the case.

# 2. It is submitted by the Learned Counsel for the Applicant that the Corporate Debtor was admitted into Corporate Insolvency Resolution Process vide order dated 23.04.2018 in CA/129/(IB)/2018 vide an application under Section 10 of the code. The Applicant herein was appointed as the Liquidator of the Corporate Debtor vide order dated 25.02.2020 in MA/547(CHE)/2018 by this Adjudicating Authority. It is stated that the company under Liquidation was engaged in the business of buying, manufacturing and selling all precious metal in the form of jewellery and other accessories. 

# 3. It is submitted by the Learned Counsel for the Applicant that the Credit facilities provided by the members of the CoC, are secured by way of primary security, collateral security and personal guarantees of the Promoters/Directors of the Corporate Debtor. It is stated that the account of Corporate Debtor sometime in April, 2017 revealed signs of sickness due to failure in payment of loans availed. Inspection of showrooms were conducted. During the meeting of SBI led consortium that held of 24.08.2017, it was decided to conduct a forensic audit into the accounts of Corporate Debtor and that M/s. DeloitteTouche Tohmatsu India LLP (DTTILLP) was appointed to conduct the Forensic audit of the Corporate Debtor.

# 4. It is submitted by the Learned Counsel for the Applicant that consequent to the forensic audit, misrepresentation/falsification of financial statements leading to the difference in the value of stock as per the audited financial statements and other transaction with related parties of the Corporate Debtor were revealed. The forensic audit also identified the role of the statutory auditor in the above misrepresentation and that the above facts evidenced that consequent to the above fraudulent activities, Corporate Debtor had caused a loss to the tune of Rs.379.75 Crores (outstanding as on 28.02.2018) plus accrued interest from 01.03.2018 to the above said Banks.

# 5. It is submitted by the Learned Counsel for the Applicant that the account of the Corporate Debtor was declared as NPA by SBI on 28.07.2017, on 29.07.2017 by HDFC Bank and on 31.07.2017 by Union Bank of India

# 6. It is submitted by the Learned Counsel for the Applicant that a Criminal case was filed by State Bank of India, registered vide RC 08/E/2018-BS & FC/BLR on 24 March 2018 by CBI, BS & FC, Bangalore against the below mentioned individuals / firms / company for commission of offences of Criminal Conspiracy, Criminal Breach of Trust, Cheating, Forgery, Using as genuine a forged Document and Criminal misconduct by Public Servants on the basis of a written complaint dated 23.08.2018 from Shri G.D. Chandrashekar, General Manager, (MC-I), Mid Corporate Regional Office-I, State Bank of India, Chennai Region against the Corporate Debtor & others. The under mentioned accused were charged for offences under Section 120B of IPC 1860, read with Section 409, 420, 467, 468 & 471 of Indian Penal Code, 1860 and Section 3(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 in the said FIR.

• a) M/s NathellaSampath Jewelry Private Limited, Corporate Debtor having Registered Office situated at No.54, Nathella Plaza, South Usman Road, T.Nagar, Chennai 600 017;

• b) Shri N.Ranganath Gupta, Promoter cum Managing Director, of Corporate Debtor, Chennai & R/o Door Noi 245 (Old No.4-B) Kilpauk Garden Road, Kilpauk, Chennai;

• c) Shri N. Prasanna Kumar, Director of Corporate Debtor, Chennai & R/o Door No 245 (Old No.4-B) Kilpauk-Garden Road, Kilpauk, Chennai

• d) Shri N. Prapanna Kumar, Director of Corporate Debtor, Chennai & R/o Door No 245 (Old No.4-B) Kilpauk-Garden Road, Kilpauk, Chennai;

• e) V. Shri Sohun C.J. Partner of M/s Jeeravla & Co., Chartered Accountant, No.27, First Floor, Barnaby Road Kilpauk, Chennai being Statutory Auditor of Corporate Debtor.

# 7. It is further submitted by the Learned Counsel for the Applicant that subsequent to the above, the Directorate of Enforcement ("ED")/the Respondent herein had passed a Provisional Attachment order vide Order No. 11/2018 dated 31.07.2018 after commencement of Corporate Insolvency Resolution Process of the Corporate Debtor. A copy of the said Provisional Attachment Order is annexed as "Annexure 2" along with the typed set of papers. It is submitted by the Learned Counsel for the Applicant that, it was only by way of this Order, that the Resolution Professional has come to know that 37 immovable properties valued to the tune of Rs. 328.44 Crore were acquired out of proceeds of crime.

# 8. It is further submitted by the Learned Counsel for the Applicant that the provisional attachment order by itself categorically states that the Corporate Debtor's funds were used in acquiring properties in  the names of the directors and related parties. The same is evidenced through bank statements, supported by the Transaction Audit report of Deloitte and written statement given by the beneficiaries of the properties to the Respondent, confirming the acquisition of properties out of the funds of the Corporate Debtor. Further, the

funds of the Corporate Debtor was also used in the form of purchase of the properties, payment of registration charges, servicing loan EMIs, payment of property tax, maintenance etc. As such, all the subject properties are the properties of the Corporate Debtor and would naturally come to the liquidation estate assets of the Corporate Debtor.

# 9. It is submitted by the Learned Counsel for the Applicant that the Resolution Professional had already filed an application in MA.No.423 of 2018 before this Adjudicating Authority seeking relief as to raise the Provisional Attachment made vide Order No. 11/2018 dated 31.07.2018 on the file of the Respondent. Simultaneously the RP also moved an application in MA No. 643/2018 before this Adjudicating Authority highlighting 37 immovable properties amounting to Rs 328.44 Crore, acquired by the Directors/Promoters/Guarantors by diverting/siphoning off of the loan amount that was sanctioned to the Corporate Debtor with a clear intention to deceive and defraud the Secured Creditors.

# 10. It is submitted by the Learned Counsel for the Applicant that vide Order dated 16.01.2019 the Adjudicating Authority, PMLA, New Delhi confirmed the Provisional Attachment Order of the Joint Director, Directorate of Enforcement, Chennai Zonal Office - 1.

Challenging the said order, the RP has preferred an appeal on 01.02.2019 before the Hon'ble Appellate Tribunal PMLA. 

# 11. It is further submitted by the Learned Counsel for the Applicant that, in view of the appeal filed before the Appellate Tribunal, PMLA, the RP withdrew MA. No 423 of 2018 on 25.02.2019 which was pending before this Adjudicating Authority seeking raise of Provisional Attachment Order with liberty to file a fresh application once the appeal filed under PMLA with the Appellate Board is disposed. 

# 12. It is further submitted by the Learned Counsel for the Applicant that, the appeal was listed for hearing on 04.08.2020 thereafter, the functioning of the Appellate Tribunal was suspended due to Covid- 19 pandemic and all the matters listed on 04.08.2020 were adjourned to 04.12.2020. Therefore, the Liquidator was not in a position to proceed further in taking the appeal to its logical end. As a result of which the Applicant herein has filed the present Application praying indulgence of this Adjudicating Authority.

# 13. It is submitted by the Learned Counsel for the Applicant that, in view of the Provisional Attachment Order dated 31.07.2018 of the Respondent, the RP could not bring about any kind of a Resolution and as a result of which the Corporate Debtor went into liquidation. 

# 14. It is further submitted by the Learned Counsel for the Applicant that, the impugned order of the Respondent prevents the Liquidator from performing his duties as per the Section 35 of the IBC 2016 which includes: 

• (a) to take into his custody or control all the assets, property, effects and actionable claims of the Corporate Debtor; 

• (b) to evaluate the assets and property of the Corporate Debtor in the manner specified by the Board and prepare a report; 

• (c) to take such measures as to protect and preserve the assets and properties of the Corporate Debtor as he considers necessary.

# 15. It is submitted by the Learned Counsel for the Applicant that, the Corporate Insolvency Resolution Process of the Corporate Debtor commenced on 23.04.2018, whereas the attachment order was passed by the Respondent only on 31.08.2018, which is much after the commencement of Corporate Insolvency Resolution Process.

# 16. It is further submitted by the Learned Counsel for the Applicant that, in terms of the provisions of Section 36 of the code, the Liquidator is empowered to take charge of the assets of the Corporate Debtor. Accordingly, it is imperative for the Applicant to be allowed to

exercise access and control over the assets which are attached by the attachment order issued by the Respondent.

# 17. It is submitted by the Learned Counsel for the Applicant that, th provisions of Section 238 of the code makes it clear that anything inconsistent therewith contained in any other Law shall be overridden by the provisions of Insolvency Code. Reliance is place on Innovative Industries Limited Vs. ICICI Bank 2017 SCC Online SC 1025, that no proceeding under any Law, including PMLA Act 2002 can be continued or initiated against Corporate Debtor till the completion of CIRP. The attachment order comes in the way of smooth functioning of the Applicant under the liquidation process and hence such inconsistency ought to be removed by virtue of the powers vested under the provisions of Section 238 of the Code.

# 18. It is submitted by the Learned Counsel for the Applicant that, further reliance is placed on the Order dated 31.08.2018 passed by the NCLT, Kolkata Bench in case of Surendra Kumar Joshi Vs.REI Agro Limited [CA(IB) No. 455/KB/2018 in CP(IB) No.73/KB/2017 wherein the Adjudicating Authority has clearly directed the ED to handover the possession of the attached properties to the Liquidator along with the title deeds. The Adjudicating Authority while delivering the said decision relied upon the Order of the Apex Court in the case of Solidaire India Private Limited Vs. Fair Growth Financial Services Private Limited Ors (2001) 3 SCC 71 wherein, under a similar controversy the Apex Court held as under:

• “The provisions of MPID Act thus cannot take away the powers under the Companies Act if the properties of the Company in liquidation are allowed to be sold and the sale proceeds are allowed to be distributed through the competent authority only amongst depositors the same would be in teeth of the provisions of the Companies Act, 1956 and the secured creditors and the workmen preferential creditors having statutory dues would be totally deprived of their legitimate claims against the company in liquidation whereas the depositors under the provisions of MPID Act would exclusively benefitted under the provisions of the MPID Act which would result in mischief."

• "The above ruling completely raises the controversy. The only difference is that in that proceedings the properties were attached under MPID Act In this case, they are attached under PMLA Act."

• 
  

# 19. The Applicant also places reliance on the Order dated 16.05.2018 passed by NCLT, Mumbai in case of State Bank of India Vs. Dunar Foods Limited the Adjudicating Authority has clearly stated:

• "The Authorities under PMLA shall cooperate with the Resolution Professional to provide all the information collected by them so that the Insolvency Proceedings can run side by side concurrently without having any conflict with the Authorities. Endeavour should be is that on attachment the properties be dealt with either for "Restructuring' or "Liquidation" within the prescribed time."

# 20. It is submitted by the Learned Counsel for the Applicant that, no prejudice would be caused to the ED upon release/vacation of the said attachment Order since the intent of the Applicant is to secure the said assets for maximization of value for the benefit of the financial creditors and other stakeholders. The Applicant states that the process of liquidation has to be completed in a time bound manner and cannot be kept in abeyance in view of the pendency of the appeal under the PMLA which would defeat the very purpose of the IBC. In light of the above circumstances, the Applicant therefore, seeks to raise the order of provisional attachment passed vide order dated 31.07 2018.

# 21. From the records available it is seen that the Respondent/Directorate of Enforcement neither appeared nor responded in the instant matter despite notices having been served. Therefore, this Adjudicating Authority vide its common order dated 04.05.2023 decided to proceed ex-parte if none is present for the respondent during the next date of hearing i.e., on 04.07.2023. On perusal of the daily proceedings dated 04.07.2023, it is seen that none appeared for the respondent. Hence, this Authority is constrained to proceed in the absence of the respondent.

# 22. Heard the Learned Counsel for the Applicant. Perused the documents including the written statements on record. 

# 23. The Corporate Debtor was admitted into Corporate Insolvency Resolution Process vide order dated 23.04.2018 by this Adjudicating Authority. It is seen that the provisional attachment were made vide Order No. 11/2018 dated 31.07.2018 by the respondent after commencement of Corporate Insolvency Resolution Process of the Corporate Debtor. It is relevant to bring on record that the period of moratorium kicks in right away once the Corporate Insolvency  Resolution Process is initiated.

# 24. In the instant matter, from the above mentioned dates and events, it is evident that the attachment order passed by the respondent is well after the date of commencement of Corporate Insolvency Resolution Process in a way making it obvious that the respondent has acted upon the assets belonging to the Corporate Debtor during the moratorium period.

# 25. On perusal of the attachment order dated 31.07.2018 it is understood that the order is passed under Section 5 (1) of the Prevention of Money Laundering Act, 2002, which by itself has a set of stipulated rules and regulations governing appeals against such attachment orders before the Appellate Tribunal, (PMLA). Moreover, from the submission made by the applicant, it is brought to the knowledge of this Adjudicating Authority that the Resolution Professional of the Corporate Debtor has already preferred an appeal before the Appellate Authority and the same is still pending. Considering the prevailing situation of the Corporate Debtor and the actions taken by the RP/Liquidator, it is seen that nothing herein bothers the Applicant/Liquidator to proceed in the chosen way before the Hon’ble Appellate Tribunal (PMLA) to lift the provisional attachment.

# 26. Thus, it is quite evident that the attachment made is as per the ingredients of the provisions of the PMLA Act, 2002 and that the same is to be dealt with under the relevant provisions of the said act only. Moreover, it is time and again retreated by the Hon’ble NCLAT that the Code only pertains to the questions concerning Corporate Insolvency Resolution Process & Liquidation Proceedings of the Corporate Debtor. Keeping that in mind, the concept of ‘Attachment’ made as per Section 5 (1) of the Prevention of Money Laundering Act, 2002 cannot be a subject matter of proceedings under Section 60(5) of the code, in a way making it clear that this Adjudicating Authority is not the right ‘FORA’ to deal with revocation of attachment made under the PMLA, Act, 2002. Thereby, making it obvious that a remedy under PMLA act cannot be claimed before this Adjudicating Authority under the IBC, 2016 Code.

# 27. Accordingly, in terms of the instant facts and circumstances, we deem it fit to dismiss the application as not maintainable in law and facts.

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Nitin Jain Vs. Lucky Holdings Pvt. Ltd. - We are of the considered opinion that the Successful Auction Purchaser has genuine case for not proceeding with the deposit of the balance bid amount due to attachment of the assets of the corporate debtor on 02.12.2021 as noted above. The 90 days period had not even come to an end on 02.12.2021 so as to impute any violation of the term and conditions by the Successful Auction Purchaser.

 NCLAT (18.01.2023) in Nitin Jain Vs. Lucky Holdings Pvt. Ltd. [Company Appeal (AT)(Insolvency) No. 1390 of 2022]  permitted refund of EMD & 1st instalment deposited by Successful Auction Bidder, observing as under;

• We are of the considered opinion that the Successful Auction Purchaser has genuine case for not proceeding with the deposit of the balance bid amount due to attachment of the assets of the corporate debtor on 02.12.2021 as noted above. The 90 days period had not even come to an end on 02.12.2021 so as to impute any violation of the term and conditions by the Successful Auction Purchaser.

• EMD and first installment paid by Successful Bidder shall be refunded but no interest shall be payable by the Liquidator on the said amount refunded to the Successful Bidder. Clause 15.5 of the Terms and Conditions

Blogger’s Comments; All said and done, the principal objective of attachment & confiscation of tainted property in PMLA is that a person/company is not able to enjoy the proceeds of crime. Under IBC, as soon as the application under section 7, 9 or 10 is accepted, the control of the company is divested from its promoters/directors/existing management & the promoters/directors are prevented from taking back the control of the company (Section 29A & section 32A) either during insolvency proceedings or during liquidation process, thus fulfilling the principal objective of PMLA.

Rather, attachment of company’s property (particularly liquid assets i.e. bank accounts etc.) under the provisions of PMLA, during insolvency/liquidation proceedings frustrate the principal objective of the IBC, to put the assets of insolvent companies in the beneficial use of the society. In contrast due  to protracted proceedings in PMLA the value of the assets gets diminished, which ultimately is the loss of the society.

Excerpts of the order;

# 1. This Appeal has been filed by the Liquidator challenging the Order dated 02.11.2022 passed by the National Company Law Tribunal, Ahmedabad, Division Bench, Court 1 (hereinafter referred to as “The Adjudicating Authority”) by which I.A. No. 240 of 2022 filed by the Successful Auction Bidder-the Respondent No. 1 to withdraw from e-auction process and to refund the EMD and first installment deposited, has been allowed.

# 2. Brief facts of the case for deciding this Appeal are:-

(i) An application under Section 10 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as “The Code”) was filed by the Corporate Debtor-PSL Limited and resolution process commenced in which order of liquidation was passed on 11.09.2020.

(ii) The Appellant was appointed Liquidator. Appellant published sale notice for selling the corporate debtor as a going concern. A sale notice dated 27.11.2020 was issued. E auction scheduled to be held on 28.12.2020 was cancelled. Sale notice was republished on 05.01.2021 for e-auction on 28.01.2021. On 15.01.2021, Liquidator received a summon from the Directorate of the Enforcement, PMLA (ED) seeking certain documents from the Appellant in reference to investigation under PMLA Act, 2002 regarding the payment of Rs. 300 Crores sanctioned by Bank of Baroda to M/s. PSL Limited.

(iii) On 25.01.2021, Liquidator received an email from the ED asking the liquidator not to proceed with the sale of the assets of the Corporate Debtor. Liquidator filed a writ petition no. 3261 of 2021 before the Delhi High Court seeking direction against the ED and continuation of the liquidation of the Corporate Debtor. An interim order dated 17.03.2021 was passed by the Hon’ble High Court directing the Appellant to proceed for the sale of the corporate debtor in accordance with the provisions of the Code. Appellant accordingly republished the sale notice for selling the corporate debtor as a going concern. E-auction process information document was also issued. E-auction was fixed for 09th April, 2021. On 09th April, 2021, the Respondent No. 1 participated in the e-auction and was declared as highest bidder.

(iv) First installment of Rs. 30 Crores was paid by the Respondent No.1 to the Appellant on 23rd April, 2021. On 08.09.2021, the Adjudicating Authority approved the sale of the Corporate Debtor as a going concern in favour of the Respondent No. 1-Successful Auction Purchaser. The Adjudicating Authority directed the balance payment within 30 days from the date of the order.

(v) An application was filed by the Respondent No. 1 for modification of the Order dated 08.09.2021 seeking payment in accordance with paragraph 1(12) of Schedule 1 of Liquidation Process, Regulation 2016. On 05.10.2021, Application filed by the Respondent No. 1 was allowed and Order dated 08.09.2021 was modified permitting payment of balance sale consideration within 30 days from the order and in accordance with paragraph 1(12) of the Schedule 1 of the Liquidation Process, Regulations 2016.

(vi) The Liquidator wrote a letter to the Respondent No.1 on 11.10.2021 that with effect from 09.10.2021 the Respondent No. 1 is liable to pay the interest also. On 02.12.2021, provisional attachment order was issued by the Enforcement Directorate wherein assets of the Corporate Debtor amounting to Rs. 274.60 Crores being equivalent to the value of proceeds of crime were attached.

(vii) After order dated 02.12.2021 passed by the ED attaching assets of the Corporate Debtor, I.A. No. 828 of 2021 was filed by the Respondent No. 1 before the Adjudicating Authority where the Adjudicating Authority passed an Order on 08th December, 2021 directing the liquidator not to forfeit any amount of the Successful Bidder. Writ petition no. 3261 of 2021 filed by the liquidator in the Delhi High Court was heard by High Court on 06th and 07th December, 2021. An application 43380 of 2021 was filed by Successful Bidder-Respondent No. 1 to be impleaded in the writ petition which impleadment was not allowed. The Delhi High Court vide its judgment and order dated 15.12.2021 allowed the writ petition filed by the Liquidator. Operative directions were issued in paragraph 102 which is to the following effect:

• “102. Accordingly and for all the aforesaid reasons, this writ petition shall stand allowed in the following terms. The Liquidator is held entitled in law to proceed further with the liquidator process in accordance with the provisions of the IBC. The respondent shall hereby stand restrained from taking any further action, coercive or otherwise, against the liquidation estate of the corporate debtor or the corpus gathered by the liquidator in terms of the sale of liquidation assets as approved by the Adjudicating Authority under the IBC. The Court grants liberty to the petitioner to move the Adjudicating Authority for release of the amounts presently held in escrow in terms of the interim order passed in these proceedings. Any application that may be made in this regard by the Liquidator shall be disposed of by the Adjudicating Authority bearing in mind the conclusions recorded hereinabove.”

(viii) Enforcement Directorate filed a Letter Patent Appeal questioning the order dated 15.12.2021 passed by Learned Single Judge. The Division Bench of the Delhi High Court issued notice in the Letter Patent Appeal and also passed an interim order directing parties to maintain status qu qua the assets of PSL Limited. By Order dated 24.12.2021, the Respondent No.1 Lucky Holdings Pvt. Ltd. was impleaded as one of the Respondents in the Letter Patent Appeal.

(ix) In the Letter Patent Appeal, an Application was filed CM No. 9111 of 2022 for staying the proceedings before the Adjudicating Authority under PMLA on which Application notices were issued. Before the Division Bench, Learned Counsel appearing for the Successful Auction Purchaser- Respondent No. 1 made a statement that Respondent No. 1 wishes to exit by withdrawing its bid from the e-auction. The said statement was recorded. It is useful to extract the following portion of the Order dated 22.02.2022 of Division Bench of Delhi High Court:

• “Issue notice. Learned Counsel for the non-applicants accept notice.

• Ms. Maneesha Dhir, learned counsel for the auction purchaser states that her client wishes to exit by withdrawing its bid from the e-auction process of the corporate debtor.

• The statement made by Ms. Dhir is taken on record and accepted by this Court. Further, the parties are given liberty to take action in accordance with law in pursuance thereto.”

(x) An I.A. No. 240 of 2022 was filed by the Successful Auction Bidder before the Adjudicating Authority. In the I.A., Successful Bidder pleaded that there being attachment of the assets of the corporate debtor vide order of Enforcement Directorate dated 02.12.2021 the Successful Auction Bidder be permitted to withdraw from the bid and the EMD as well as the first installment deposited by the Successful Bidder be permitted to be refunded. The Application filed by the Successful Auction Bidder was opposed by the Appellant-the Liquidator herein. The Adjudicating Authority after hearing the Successful Bidder as well as the Liquidator and Learned Counsel for the Enforcement Directorate passed an Order on 02.11.2022 permitting the Successful Auction Bidder to withdraw from e-auction.

Following is the order passed on 02.11.2022:

• “1. The applicant is permitted to withdraw from E-auction process held on 09.04.2021.

• 2. The liquidator is directed to pay the applicant a sum of Rs. 30,00,00,000/- together with interest accrued thereon within two weeks from today.

• The liquidator is allowed to retain sum of Rs. 5,00,000/-towards process costs already incurred for E-auction on 09.04.2021.

• 3. With the above directions, the application stands disposed of.

• 4. Urgent certified copy of this order, if applied for, to be issued to all concerned parties upon compliance with all requisite formalities.”

# 3. The Appellant aggrieved by this Order dated 02.11.2022 has come up in this Appeal.

# 4. We have heard Mr. Krishnendu Dutta, Sr. Advocate for the Appellant, Mr. Ramji Srinivasan, Sr. Advocate for the Respondent No. 1 and Mr. Neeraj Malhotra, Sr. Advocate for Edelweiss Asset Reconstruction Company Limited who was permitted to intervene.

# 5. Learned Sr. Counsel-Mr. Krishnendu Dutta appearing for the Appellant submits that the Respondent No. 1 failed to deposit the total bid amount within the time allowed by Order dated 08.09.2021 as modified on 05.10.2021 and as per paragraph 1(12) of Schedule 1 of the Liquidation Process, Regulations, 2016, the amount deposited by Respondent No. 1 are deserved to be forfeited as per the process information document of e-auction. It is submitted that Respondent No. 1 participated in the e-auction fully knowing that Enforcement Directorate had initiated proceedings against the Corporate Debtor. In the process sale notice “as is where is”, “as is what is” and “whatever there is basis”, Respondent No. 1 participated in the e-auction fully knowing well about the email dated 25.01.2021 received from Enforcement Directorate which was disclosed in e-auction process document, Respondent No.1 cannot withdraw from e-auction. It is further submitted that within 90 days period as permitted under paragraph 1(12) of Schedule 1 of Liquidation Process, Regulations 2016 Respondent No. 1 failed to deposit balance amount from 08.09.2021. The Respondent No.1 has violated the terms and conditions of sale notice and entire amount deserved to be forfeited. It is submitted that order of the Hon’ble Delhi High Court dated 24.12.2021 and 22.02.2022 passed by the Division Bench cannot be read as permitting the Respondent No. 1 to withdraw from e-auction. The division bench of the High Court only noticed the statement on behalf of the Respondent No. 1 that they wish to withdraw from e-auction. The e-auction process information document is binding on the Respondent No. 1. The Adjudicating Authority committed error in allowing the Application of Respondent No. 1 to withdraw from e-auction. It is further submitted that Adjudicating Authority also committed error in directing the refund of the EMD and amount of Rs. 30 Crore deposited as first installment whereas the Respondent No. 1 having not complied with terms and conditions of the sale notice the entire amount was required to be forfeited. It is further submitted that the Adjudicating Authority committed another error in directing the refund of the amount along with interest where as per the sale notice no interest is payable on the EMD and installment deposited by the Respondent No. 1

# 6. Mr. Ramji Srinivasan, Learned Sr. Counsel appearing for the Successful Auction Purchaser refuting the submissions of Learned Counsel for the Appellant contends that the Adjudicating Authority did not commit any error in allowing the Application of Respondent No. 1 vide Order dated 02.11.2022 that is subsequent to approval of the e-auction and the time for payment of the entire bid having not over by that time the Respondent No. 1 could not be asked to make the payment of balance bid amount. The assets of the Corporate Debtor being under attachment, the Liquidator is not in a position to hand over the assets or to complete the sale. The Order dated 08.09.2021 was modified on 05.10.2021 and time to make payment shall start only from 05.10.2021. It is submitted that against the Judgment of the Delhi High Court dated 15.12.2021, Letter Patent Appeal has been entertained and Order of status quo has been passed. The sale in favour of the Respondent No. 1 can never be concluded. The Respondent No. 1 had therefore made statement before the division bench of the Delhi High Court that Respondent No. 1 wish to withdraw from e-auction which statement was recorded and Respondent No. 1 was permitted to withdraw from e-auction. Hon’ble High Court having noted the aforesaid fact, the Adjudicating Authority rightly has passed an order permitting the Respondent No. 1 to withdraw from e-auction. Mr. Ramji Srinivasan further submits that the liquidator himself has made an application before the High Court seeking a permission to proceed with the sale of the assets of the Corporate Debtor which has not been attached by the Order dated 02.12.2021. The Division Bench has permitted the Liquidator to proceed with the sale and liquidator having sold the assets it is clear that the auction sale dated 08.09.2021 cannot be given effect by any means.

# 7. Learned Counsel appearing for the EARC-Intervener submits that financial creditor has given their consent before the Division Bench for attachment by the Enforcement Directorate be transferred qua the properties to sale proceeds.

# 8. We have considered the submissions of Learned Counsel for the parties and have perused the record.

# 9. Considering the submissions and perusing the record, following are the three questions which arise for consideration:

• i. Whether the Successful Auction Purchaser (Respondent No. 1) having not deposited the balance bid amount within 90 days from approval of the e-auction sale, the EMD and the first installment paid deserved to be forfeited as per terms and conditions of sale notice;

• ii. Whether the Adjudicating Authority committed error in allowing Successful Auction Purchaser to withdraw from e-Auction along with the direction to refund the EMD and first installment;

• iii. Whether the Adjudicating Authority while directing for refund of the EMD and First Installment committed error in directing for refund along with the interest since as per the terms and conditions of Auction Sale Notice, no interest was payable on EMD and First Installment even if in a case when auction sale is not approved.

# 10. The above three questions being inter related are being taken together.

# 11. Before we enter into rival submissions of Learned Counsel for the parties it is relevant to notice sale notice issued for e-auction on 09th April, 2021 and certain terms and conditions of the sale notice. E-auction sale notice issued has made reference to the Order of the Delhi High Court dated 17th March, 2021 as well as Email dated 25th January, 2021 issued from Directorate of Enforcement. The e-auction notice also mentions that sale of the company was ‘as is where is basis’. It is useful to extract following part of the terms and conditions:

• “The sale of the Company is proposed to be done on “as is where is basis”, “as is what is basis”, “whatever there is basis” and “no recourse” basis and the proposed sale of the Company on going concern basis does not entail transfer of any other title, except the 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/immovable assets of the Company.

• The Liquidator received an email dated 25.01.2021 from the Directorate of Enforcemnt with respect to proceedings under Prevention of Money Laundering Act, 2002 requesting the Liquidator not to dispose of the assets of the Corporate Debtor. Thereafter, the Liquidator filed a Writ Petition (W.P. 3261 OF 2020) before the Hon’ble High Court of Delhi, wherein the Court stated that “the impugned e-mail and any other direction issued by the Respondent against the liquidator shall remain stayed. In order to maintain a balance and to ensure that there is no prejudice caused, the Liquidator shall proceed in accordance with the provisions of the Insolvency and Bankruptcy Code, 2016 (hereinafter, ‘IBC’). The link of the Order is  . . . . .  . .”

# 12. Respondent No. 1 was the Successful Auction Purchaser in the e-Auction held on 09th April, 2021 and auction was approved on 08.09.2021 which order was modified on 05.10.2021 which permitted the Successful Auction Purchaser to make the payment within 30 days from the date of approval order and as per paragraph 1(12) of Schedule 1 of Liquidation Process, Regulations 2016. The ninety days period computing from 08.09.2021 was to come an end on 08.12.2021 as per paragraph 1(12) of Schedule 1 of Liquidation Process, Regulations 2016. Any amount if paid after 30 days and within 90 days was required to be paid along with interest. Regulation thus prescribed period of 90 days for payment of entire bid amount. The Successful Bidder has deposited the amount of Rs. 30 Crore as the First Installment within the time and it was entitled to deposit the entire balance amount along with interest within 90 days. The most important event which took place subsequent to the approval of the auction is the attachment of the assets of the corporate debtor under the PMLA, 2002 by Order dated 02.12.2021. Prior to 02.12.2021 only email was issued on 25.01.2021 by the ED which was not initiation of proceedings under PMLA Act. After attachment of the assets of the corporate debtor it was not within the power of the liquidator to hand over the assets to the Respondent No. 1 Successful Auction Bidder or to issue a sale certificate with regard to the assets of the corporate debtor. The judgment of the Hon’ble Delhi High Court allowing the writ petition was passed on 15.12.2021 which was after the expiry of period of 90 days from approval of auction. The Single Judge of the Delhi High Court has stayed the proceedings before the Adjudicating Authority of the PMLA Court however said judgment of single judge is under challenge in the Letter Patent Appeal No. 512 of 2021 before the Division Bench of the Delhi High Court wherein Interim Order dated 24.12.2021 has been passed to the following effect:

• “Issue notice.

• Mr. Sidharth Chopra, learned counsel accepts notice on behalf of the respondent.

• Ms. Maneesha Dhir, learned counsel for the auction purchaser i.e. Lucky Holdings Pvt. Ltd. and Mr. R.P. Agarwal, learned counsel for the secured creditors led by Edelweiss Asset Reconstruction Company Ltd. state that though their clients were parties before the leared Single Judge, yet they have not been impleaded as parties to the present appeal.

• Learned Additional Solicitor General states that has no objection to their impleadment.

• Accordingly, the Lucky Holdings Pvt. Ltd. and the Edelweiss Asset Reconstructino Company Ltd, are impleaded as respondents in the present appeal. Let an amended memo of parties be filed within ten days.

• Ms. Maneesha Dhir states that Lucky Holdings Pvt. Ltd. is not ready and willing to make any further payment to the Official Liquidator till her application filed before the NCLT is decided. She points out that her application is listed for hearing on 02nd February, 2022.

• Mr. Neeraj Malhotra, learned senior counsel for the Edelweiss Asset Reconstruction Company Ltd. states that the secured creditors are also not agreeable to the shifting of the attachment order from the immovable assets to the money to be deposited by the auction purchaser.

• List on 24th January, 2022 for hearing.

• Parties are directed to complete the pleadings and file documents, if they so desire, before the date of hearing.

• Till the next date of hearing, the parties shall maintain status quo qua the assets of PSL Limited, a company in liquidation.”

# 13. We may also notice that in the order dated 24.12.2021 statement on behalf of Learned Counsel for the Successful Auction Purchaser recorded that Successful Auction Purchaser is not making any further payment to the liquidator, further in subsequent hearing of the LPA on 22.02.2022 clear statement made on behalf of Learned Counsel for the Successful Auction Purchaser that Successful Auction Purchaser wishes to exit by withdrawing its bid from the e-auction. Statement was recorded and accepted by the court following is the order passed on 22.02.2022 by the High Court:

• “Ms. Maneesha Dhir, learned counsel for the auction purchaser states that her client wishes to exit by withdrawing its bid from the e-auction process of the corporate debtor.

• The statement made by Ms. Dhir is taken on record and accepted by this Court. Further, the parties are given liberty to take action in accordance with law in pursuance thereto.”

# 14. It is relevant to notice that with regard to proceedings under PMLA, the Liquidator has filed a writ petition in the Delhi High Court being writ petition no 3261 of 2021 where interim order by Learned Single Judge as well as final judgment by the Single Judge was passed and thereafter orders were passed in LPA. Division Bench of the High Court is clearly seized with the matter on an Appeal filed by the ED where the High Court has recorded the statement of Successful Auction Purchaser and accepted the said statement, we are of the view that in view of the orders of the Delhi High Court dated 22.02.2022 recording and accepting the statement of Learned Counsel for the Successful Auction Purchaser that Successful Auction Purchaser wishes to exit, liquidator cannot insist that the auction sale in favour of the Successful Auction Purchaser to be proceeded with and finalized. Division Bench granted liberty to the parties to take action in accordance with law in pursuant thereto. Consequently the application for withdrawal was considered and decided by the Adjudicating Authority on 02.11.2022.

# 15. Learned Counsel for the Appellant placed reliance on the terms and conditions of the e-auction notice which provides for forfeiture of the Earnest Money Deposited by the bidder. Reference has been made to paragraph 11.5.1. to 11.5.2 of the terms and conditions are as follows:

• “11.5.1 It is to be noted that the EMD furnished can be forfeited at any time, upon the occurrence of any of the following events:

• (i) If there is a breach of any of the conditions under this E-Auction Process Information Document (Sale of Corporate Debtor as a Going Concern) by the Bidder;

• (ii) In case Bidder is found to have made any misrepresentation or fraud; or

• (iii) If Bidder is found to be ineligible to submit the bid as per the conditions set out in Section 29A of the IBC (as amended from time to time) or is found to have made a false or misleading declaration of eligibility as per the conditions set out in Section 29A of the IBC (as amended from time to time); or

• (iv) If the Successful Bidder attempts to reduce/renegotiate the Bid amount under any circumstances;

• (v) If the bidder withdraws/cancels or make any attempt to withdraw or cancel its Bid at any time; or

• (vi) If the Successful Bidder fails to renew the bank guarantee provided for the EMD till the final order and keep the same valid for a period of 6 months thereafter; or

• (vii) If the Successful Bidder fails to make the payment of the 1st installment payment within 15 days from the declaration as Successful Bidder in accordance with the terms of the E-auction process document; or

• (viii) If the Bidder is identified as the Successful Bidder and it fails to extend the validity of the EMD through the bank guarantee or does not accept the Letter of Intent issued by the Liquidator; or

• (ix) If the Successful Bidder, fails to make the complete payment within the time stipulated in the Liquidation and/or the Final Approval Order.

• 11.5.2 In case of occurrence of any of the above events:

• (i) All the amounts deposited by the Bidder or any other person on its behalf till that date shall be forfeited and the Bidder or any other Person shall not be entitled to refund of the same;

• (ii) the option to acquire the assets of the Company/Company will be offered to the next highest bidder. It is clarified that the Liquidator shall, in his discretion, have the right to offer the option to acquire the assets of the Company, both to the next highest bidder under Option A or to determine the successful bidders under Option B and C and offer the option to acquire the assets of the Company to them.”

# 16. There can be no dispute to the clear terms and conditions of the auction sale notice. The question to be answered is as to whether even after attachment of the assets of the corporate debtor under PMLA Act on 02.12.2021, the auction purchaser was required to deposit the entire sale amount. Before the Order of attachment was passed on 02.12.2021, no default can be said to have committed by Auction Purchaser in depositing the amount since first installment was deposited within time and the successful purchaser had 90 days time to deposit the balance amount and before expiry of 90 days the assets of the corporate debtor were attached. In view of the attachment of the assets of the corporate debtor on 02.12.2021, Liquidator can neither complete the sale, can issue sale certificate nor can hand over the assets of the corporate Debtor to the Successful Auction Purchaser and due to aforesaid event the Application was filed by the Successful Auction Purchaser to withdraw from auction and for refund of the EMD. We are of the considered opinion that the Successful Auction Purchaser has genuine case for not proceeding with the deposit of the balance bid amount due to attachment of the assets of the corporate debtor on 02.12.2021 as noted above. The 90 days period had not even come to an end on 02.12.2021 so as to impute any violation of the term and conditions by the Successful Auction Purchaser. The Adjudicating Authority after considering the submissions of parties has taken the views that as on today the liquidator is not in a position to hand over the custody of the units of the corporate debtor for which e-auction was held and the Division Bench of the High Court on 24.12.2021 has directed parties to maintain status quo. The Adjudicating Authority has rightly passed an order permitting the Successful Bidder to withdraw from the auction and directed to refund of the amount of the EMD Rs. 5 Crores and First Installment of Rs. 30 Crores.

# 17. Now we come to the submission of Learned Counsel for the Appellant that Adjudicating Authority ought not to have directed for refund of the amount along with the interest. Learned Counsel for the Appellant has referred to the terms and conditions of the E-Auction Sale Notice where it was contemplated that even in the case of non-approval of the sale by the Adjudicating Authority, EMD and first installment paid by Successful Bidder shall be refunded but no interest shall be payable by the Liquidator on the said amount refunded to the Successful Bidder. Clause 15.5 of the Terms and Conditions is as follows:

• “15.4 In the event, the Final Order is passed by the Judicial Authority rejecting the sale on going concern basis pursuant to this E-Auction Process Document and the same is not appealed by the Liquidator in the NCLAT or the Supreme Court (as the case may be), the Liquidator shall return/refund the EMD and 1st Installment payment made by the Successful Bidder within 60 days from the receipt of the Final Order. No interest shall be payable by the Liquidator on the said amounts to be refunded to the Successful Bidder.”

# 18. Even in a case where Successful Auction Bid as going concern is not approved, Successful Auction Bidder is not entitled for any Interest on the EMD and 1st Installment. We are of the view that the Successful Auction Bidder is not entitled for interest on the amount of EMD and First Installment and the Adjudicating Authority without adverting to clause 15.4 has issued direction for refund of the EMD and 1st Installment along with interest.

# 19. In view of the foregoing discussion, we are of the view that the Adjudicating Authority has rightly permitted the Successful Auction Purchaser to withdraw from e-auction and directed for refund of the EMD of Rs. 5 Crores and 1st Installment of Rs. 30 Crores. We further are of the view that the direction to refund the amount of Rs. 5 Crores and 30 Crores along with interest is unsustainable. In result, we partly allow the appeal setting aside the direction of the Adjudicating Authority dated 02.11.2022 to refund the amount with interest. The rest of the Order of the Adjudicating Authority including the direction to refund EMD of Rs. 5 Crore and Rs. 30 Crore is upheld. Parties shall bear their own costs.

 

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