JUDGEMENT

(04.07.2023) NARESH SALECHA, MEMBER (TECHNICAL) 1. The present two appeals have been filed by the two Appellants under Section 61 of the Insolvency and Bankruptcy Code, 2016 (in short ‘Code’) against the Impugned Order dated 02.03.2023 passed by the Adjudicating Authority [National Company Law Tribunal, Mumbai Bench] in I.A. No. 947/2022 in C.P. (IB) No. 297/ (MB)/ 2018, whereby the Adjudicating Authority set aside the e-auction dated 08.04.2022 of the sole property of the corporate debtor.

2. The Company Appeal (AT) (Ins) No. 401 of 2023 has been filed by Mr. Naren Seth, the liquidator of Ciemme Jewels Ltd./ Corporate Debtor, wherein he is aggrieved by the impugned order setting aside e-auction dated 08.04.2022 for sale of sole property of the corporate debtor in liquidation and directing the Appellant/ liquidator to personally bear the cost of auction/re-auction, contemplating haste on part of the Appellant/ liquidator. In another Company Appeal (AT) (Ins) No. 695 of 2023, the appeal has been filed by M/s Marine Electrical (India) Pvt. Ltd./ Successful bidder of the sole property of the Corporate Debtor consisting of land and building against the impugned order which cancelled the E-auction.

3. Since, both appeals are arising out of same impugned order dated 02.03.2023, on the same subject, therefore these have been clubbed and heard together and are now being dealt in subsequent paragraphs and shall be disposed accordingly by the same order of this Appellate Tribunal.

4. Heard the Counsel for the Parties and perused the records made available including cited judgments of the Hon’ble Supreme Court of India and earlier orders of this Appellate Tribunal.

5. One M/s Vijisan Exports Pvt. Ltd., the Operational Creditor of the Corporate Debtor/ Ciemme Jewels Ltd. filed an application under Section 9 of the Code before the Adjudicating Authority which was admitted and Corporate Insolvency Resolution Process was initiated against the Corporate Debtor on 18.04.2018. However, due to non-receipts of any Resolution Plan, the Adjudicating Authority vide order dated 25.03.2019 directed the corporate debtor to be liquidated in accordance with Section 33(1) of the Code and Mr. Naren Seth, the Appellant in CA (AT) (Ins) No. 401 of 2023 was appointed as the liquidator.

6. Learned Counsel for the Liquidator/Appellant submitted that he conducted two separate auctions for the sale of the premises, the first auction was conducted on 04.12.2019 and second auction on 01.03.2021 both the auctions was unsuccessful as no bid was received. Learned Counsel for the Appellant stated that he prepared 3rd Notice dated 02.04.2022 for Sale of Assets and the same was uploaded on the official website of the Insolvency and Bankruptcy Board of India ("IBBI") & the E Auction Platform and also published in two newspapers, namely- Financial Express and Navakal on 02.04.2022. 7. Learned Counsel for the Appellant/Liquidator stated that due to a typographical error, in the last portion of the 3rd Notice for Sale of Assets, in point 5, the last date for submission of the Expression of Interest (in short “EoI") and the Earnest Money Deposit (“EMD") was wrongfully mentioned as 15.04.2022 and 16.04.2022 respectively. Upon realizing the error, the Appellant immediately rectified the same and the 3rd Notice for Sale of Assets free of error was re-uploaded on the IBBI Website and E-Auction Platform and published in the Navakal on 09.04.2022. 8. Learned Counsel for the Appellant stated that according to the rectified Notice for Sale of Assets, E-Auction was to be conducted on 08.04.2022, the Corrigendum clearly stated that the last date for submission of EoI is 04.04.2022 and the last day for the submission of EMD and other documents was 07.04.2022. 9. Learned Counsel for the Appellant stated that the correct dates and times for the several steps of the E-Auction were provided in a tabular form hereunder :-

S.No. Particulars Date and Time