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Judgment
O R D E R
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 ‘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.”
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.
Counsel for the Respondent submits that the respondent has no objection in returning the transformer to the liquidator on ‘as is where is’ basis.
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.
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 charges either before the RP or before the liquidator. There can’t be any direction for payment of any storage charges.
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.
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.’
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.
The Respondent submits that the transformer shall be handed over to the liquidator within two weeks from today.