Kashvi Power & Steel Pvt Ltd vs 1.Modern India Con Cast Limited In ...

Company Appeal (AT) (Ins.) No. 755 of 2022 & I.A. No. 2069 of 2022 IN THE MATTER OF: Kashvi Power & Steel Pvt. Ltd. ....Appellant

Vs.

Modern India Con Cast Ltd. & Anr. ....Respondents

Present: For Appellant: Mr. Abhijeet Sinha, Mr. Shambo Nandy, Mr. Saikat Sarkar, Mr. Arijit Mazumdar, Advocates. For Respondents: Mr. Utsav Mukherjee, Mr. Jaiveer Kant and Mr. Hardik Khatri, Advocates for R-1. Ms. Manju Bhuteria, Mr. Debashis Mukherjee and Ms. Urmila Chakraborty, Advocates for R-2.

With

Company Appeal (AT) (Ins.) No. 599 of 2022

IN THE MATTER OF: Sanjai Kumar Gupta ....Appellant

Vs.

Brand Alloys Pvt. Ltd. ....Respondent

Present: For Appellant: Mr. Gaurav Mitra, Advocate For Respondent: Ms. Manju Bhuteria, Mr. Debashis Mukherjee and Ms. Urmila Chakraborty, Advocates for R-1.

ORDER

09.09.2022: Both these appeals have been filed against the same

impugned order passed by the Adjudicating Authority (National Company Law

Tribunal, Kolkata Bench-I, Kolkata) dated 20.04.2022 by which Adjudicating

Authority has disposed of I.A. (IB) No. 803/KB/ 2021 directing the Respondent Company Appeal (AT) (Ins.) No. 755, 599 of 2022 2

'Modern India Con Cast Ltd.' to handover physical position of the transformer

to the liquidator within one week from the date on which the repairs are paid in

full by the Liquidator, in paragraph 11 following direction is issued:-

In these circumstances, we direct the Respondent to handover physical possession of the transformer to the Liquidator within one week from the date on which the repairs are paid for in full by the Liquidator. The Liquidator is directed to treat such payment as part of the liquidation cost and the Liquidator shall sell the same and distribute the sale amount as per the Code and Liquidation Regulations."

2. Aggrieved by the order, both, the Appellant 'Kashvi Power & Steel Pvt.

Ltd.' who is a auction purchaser as a going concern, as well as the liquidator,

has come up in this appeal. Reply has been filed on behalf of the Respondent

where in paragraph 6 of the Reply it has been claimed that Respondents are

entitled for storage charges @ Rs. 10,500/- per day.

3. Counsel for the Respondent submits that the respondent has no

objection in returning the transformer to the liquidator on 'as is where is' basis.

4. It is further submitted by the Appellant that the amount of Rs. 25 lakhs

was advanced for repair for which counsel for the respondent submits that for

the amount received, the repairs were already made, however, no further

amount is to be paid to the respondent for returning the transformer.

5. Coming to the claim of the respondent for storage charges, it is clear that

in paragraph 11 of the order no such direction has been issued for storage

charges and further we are of the view that no claim has been made for storage

Company Appeal (AT) (Ins.) No. 755, 599 of 2022 3

charges either before the RP or before the liquidator. There can't be any

direction for payment of any storage charges.

6. In view of the aforesaid, we dispose of both the Appeals by deleting the

direction issued in paragraph 11 for payment of repairs in full.

7. Counsel for the Appellant further submits that direction of the

Adjudicating Authority to sell the transformer and distribute the amount

received from the same, needs also be set aside. Transformer was part of assets

of the Corporate Debtor and were already sold to the Appellant 'Kashvi Power &

Steel Pvt. Ltd.'

8. We find substance in the submissions that the transformer having

already been sold to the Successful Auction Purchaser, direction issued by the

Adjudicating Authority in the impugned order to the effect that liquidator shall

sell and distribute the same, also need to be set aside. The Appeals are allowed

to the extent indicated above.

9. The Respondent submits that the transformer shall be handed over to

the liquidator within two weeks from today.

[Justice Ashok Bhushan] Chairperson

[Barun Mitra] Member (Technical)

sa/nn

Company Appeal (AT) (Ins.) No. 755, 599 of 2022