Ayan Mallick vs Pratim Bayal And Ors

Ayan Mallick ...Appellant

Versus

Pratim Bayal, Liquidator & Ors. ...Respondents

Present: For Appellant: Mr. Sanwal Tibrewal and Mr. Shaunak Mitra, Advocates.

For Respondents: Mr. Ashish Makhija and Mr. Deep Bisht, Advocates for R-1 (Liquidator). Mr. Om Narayan Rai and Mr. Mohit Seth, Advocates for R-2 (SBI).

ORDER

(Virtual Mode)

13.05.2022: Heard learned counsel for the Appellant, Shri Ashish

Makhija, learned counsel for the Liquidator and learned counsel appearing for

the Bank. This Appeal has been field against the order dated 01.02.2022 by

which the Adjudicating Authority (National Company Law Tribunal), Kolkata

Bench, Kolkata has dismissed the I.A. No. 32/KB/2022 filed by the

Applicant/Appellant. In the I.A. the prayer made by the Appellant who is

Suspended Director of the Corporate Debtor was that e-auction sale notice

dated 16.12.2021 for sale of the assets of the Corporate Debtor under

liquidation and assets of the guarantor under SARFAESI Act be stayed until

the disposal of the I.A.

2. The e-auction notice was issued for sale of factory and land. Apart from

the assets of the Corporate Debtor, the land was owned by the Promoter/

Cont'd.../ -2-

Guarantor, hence, e-auction notice was for a joint sale of the assets. It was

submitted before the Adjudicating Authority that joint sale will maximize the

value of assets of the Corporate Debtor, hence the Court should permit the

same. After hearing the learned counsel for the parties, the Adjudicating

Authority rejected the application and observed that if there is maximization

of the assets, selling it as a combined should not prejudice the applicant in

any manner as it is going to get a better value for the corporate guarantor.

3. With regard to value of both properties i.e. of the Corporate Debtor and

the guarantors, Rs.16.15 crores is the joint reserved price mentioned in the e-

auction notice. Learned counsel for the Appellant submits that by selling the

assets of the guarantors also, he will lose his rights which are given under

SARFAESI Act, 2002 qua the properties.

4. Learned counsel for the Respondent has also referred to judgment of

this Tribunal in Company Appeal (AT) (Ins.) No.147/2022 - 'Prateek Gupta

and Ors. vs. Kotak Mahindra Bank Ltd. and Anr.'. The above judgment do

support the submissions raised by learned counsel for the Respondent.

5. We have considered submissions of learned counsel for the parties and

perused the record. When the Adjudicating Authority is satisfied that joint

sale shall bring maximization of assets of the Corporate Debtor and the

possession of the properties of the Guarantors have already been taken under

SARFAESI and both land and factory need to be sold together to maximize the

value of the assets, we fail to see that how the Appellant shall be prejudiced in

Company Appeal (AT) (Insolvency) No. 456 of 2022 -3-

any manner. We do not find any error in the order of the Adjudicating

Authority rejecting the I.A. We dismiss the Appeal. We, however, observe that

it shall be open to the Appellant to take such remedy under SARFAESI with

regard to auction in accordance with law.

[Justice Ashok Bhushan] Chairperson

[Shreesha Merla] Member (Technical) Archana/nn

Company Appeal (AT) (Insolvency) No. 456 of 2022