JUDGEMENT

ASHOK BHUSHAN, J. 1. This Appeal has been filed by Successful Bidder challenging the Order dated 02.12.2022 passed by National Company Law Tribunal, New -2- Delhi, Principal Bench (hereinafter referred to as “The Adjudicating Authority”) disposing of I.A. No. 3207 of 2022 filed by the Appellant. 2. Brief facts of the case necessary to be noted for deciding this Appeal are:- a. The Adjudicating Authority passed an order dated 09.01.2020 for liquidation of Apex Buildsys Limited- Corporate Debtor. b. E-Auction Notice was issued by the Liquidator for sale of the Corporate Debtor as a going concern. After issuance of several E-Auction Notices by the Liquidator, e-Auction Notice was issued on 04th May, 2022 fixing 23rd May, 2022 as date for e-auction. E-auction process information document was also issued inviting bids for auction/sale of M/s. Apex Buildsys Limited as a going concern in its totality along with its employees/workers. c. E-auction document contained various annexures and formats.

E-Auction Notice also contained terms and conditions of the e-auction. Prospective bidders were required to make their own independent inquiries regarding the encumbrances, title of assets/properties of the company put on auction as going concern. It is useful to extract clause 2 of Terms and Conditions of the E-Auction which is to the following effect: “The prospective bidders should make their own independent inquiries regarding the encumbrances, title -3- of assets/properties of the company put on auction as going concern and claims/rights/dues/affecting the assets and should conduct their own due diligence prior to submitting their bid. The e-auction advertisement does not constitute and will not be deemed to constitute any commitment or any representation of the Liquidator.

The company is being sold with all the existing and future encumbrances/claims/dues/demands whether known or unknown to the liquidator. Liquidator shall not be responsible in any of way for any third party claims/rights/dues.” d. Terms and Conditions of e-Auction under Heading P(II) Other Terms and Conditions of E-auction contains certain additional terms and conditions. Under clause 2, following has been stated: “2. The Liquidator has proposed to conduct sale of the Corporate Debtor as a going concern in its totality as contemplated under Regulation 32(e) of the Liquidation Regulations through E-auction Process, as under: -

a. Upon payment of 25% of the bid amount, A Term Sheet shall be executed between the Liquidator representing the Corporate Debtor and the successful bidder to give effect for sale of the Corporate Debtor as a going concern in its totality alongwith its employees/workers. The broad terms are stated herein below: -

• The cut-off date for the purposes of determination of all assets and liabilities of the Corporate Debtor shall be the liquidation commencement date, i.e., January 9th -4- • The sale of the Corporate Debtor as a going concern shall result in the transfer of the entire available assets of the Corporate Debtor in favour of the successful bidder on the date of transfer after payment of full sale consideration amount, i.e., on the date of handover of the reins of the company.

• All known or unknown, claimed or unclaimed, disclosed or undisclosed liabilities/ obligations, risks as on the cut-off date including prior claims of all creditors whether secured, unsecured, workers, employees, statutory authorities on account of Income Tax, Sales Tax, GST, Service Tax, DGFT, Excise, Customs etc., shareholders on account of transactions prior to the cut- off date shall be dealt with as per Section 53 of the Insolvency and Bankruptcy Code, 2016 as full and final settlement of their dues. The Liquidator shall in no event be responsible for any liabilities /obligations/ risks pertaining to the period prior to the Cut-off date, and the same shall be dealt with as per the provisions of law and directions