NATIONAL COMPANY LAW APPELLATE TRIBUNAL

NEW DELHI

Company Appeal (AT) (Insolvency) No. 1098 of 2020

(Arising out of Impugned Order Dated 05^th November, 2020 passed by

Hon’ble National Company Law Tribunal, Principal Bench, New Delhi in

Company Petition No. (IB)-473 (PB)/2018]

IN THE MATTER OF:

Saboo Tor Private Limited

Having Its Registered Office at

Trilokpur Roadkala Amb Sirmour,

Himachal Pradesh – 173030

....Appellant

Versus

1.

Mr. Sanjay Gupta, Liquidator

Case Cold Roll Forming Ltd.

311, Bestech Chambers,

B Block, Sushant Lok Phase-1,

Sector 27,

Gurgaon – 122002

E-mail: casecold@primussolutions.in

Also at

C-4/E/135, Janak Puri,

New Delhi – 110038

....Respondent No. 1.

2.

Case Cold Roll Forming Ltd.

Through Its Liquidator

Mr. Sanjay Gupta

74, Hemkunt Colony, Opp. Nehru Place,

New Delhi – 110048

casecold@primusresolutions.in

Also at:

C-4/E/135, Janak Puri,

New Delhi – 110038

....Respondent No. 2.

Present:

For Appellant:

Mr. Harshit Agarwal and Mr. Ashish Gupta,

Advocates.

For Respondent:

Mr. Abhishek Anand and Mr. Kunal Godhwani,

Advocates for Respondent Nos. 1 and 2.

2

Company Appeal (AT) (Insolvency) No. 1098 of 2020

J U D G E M E N T

Per: Shreesha Merla, Member (Technical)

1.

The Appellant is the unsuccessful Applicant in I.A. No. 3413 of 2020

in Company Petition No. (IB)-473/PB/2018 filed before the Ld. Adjudicating

Authority, National Company Law Tribunal, Principal Bench, New Delhi

seeking refund of the earnest money deposited which was forfeited by the

Respondents. The Ld. Adjudicating Authority, while dismissing the

Application observed as follows:

“5.

Over and above the factual background, the

liquidator has stated that this applicant filed a civil suit

before Civil Court Nahan, District Sirmour, Himachal

Pradesh in relation to this issue and obtained exparte

order, over which when the liquidator filed Order VII

Rule 11 application stating that Civil Court has no

jurisdiction to deal with the issue falling within IBC as

per Section 63 of Insolvency and Bankruptcy Code, that

civil suit was dismissed vide order dated 13.08.2020.

6.

Soon after dismissal of the aforesaid suit, since

the liquidator is bound by time to complete process of

liquidation, the liquidator has again conducted the

bidding process and sold the assets of the company

including the assets involved in the earlier bidding and

liquidated the company, now he is about to file

dissolution application before this Bench.

7. As against the submission of the liquidator, the

applicant counsel has stated that the applicant is at

liberty to make payments after thirty days along with

the interest @12 %, if at all bidder has failed to make

payment within thirty days from the date on which 25%

to be made, then only sale shall be cancelled if the

payment is not received within ninety days.

8.

To which, the liquidator counsel has stated that

this clause is applicable only to the item 13 in the

column, that is for payment of balance consideration of

75 % after the bidder has paid 25%, but not at the stage

of paying 25 %. If the successful bidder failed to pay the

remaining 75 % of the balance consideration payable by

the bidder, then interest is leviable in between 30 days

and outer limit of 90 days.

9.

Here the issue is this applicant has not even paid

initial 25 % as per the documents accepted by him, then

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Company Appeal (AT) (Insolvency) No. 1098 of 2020

the question of invocation of the clause aforesaid will

not arise.

10.

At last, the applicant counsel has requested this

bench to consider the aspect on equity ground and

direct the liquidator to refund the money that was paid

by the applicant.

11.

When law is very clear and the applicant has

entered into the bidding process based on the terms

and conditions in the bidding documents, today the

applicant cannot turn around and ask for refund