Disposed

In the matter of Impex Metal & Ferro Alloys Limited [I.a. No. 1617 of 2023 in C.P. No. 176/KB/2018]

NCLT16 Apr 2024I.A. No. 1617 of 2023 in C.P. No. 176/KB/2018

Case brief

AI extract

What is this about?

The Tribunal disposed of an application seeking extinguishment of liabilities and refund of arrear maintenance charges. It held that the respondent could charge renewal fees but not arrear maintenance for the period prior to the applicant's acquisition, ordering a recalculation and potential refund.

What did the court decide?

Respondent to charge only renewal fees and refund any arrear maintenance balance calculated for the period prior to acquisition within four weeks.

In the matter of Impex Metal & Ferro Alloys Limited… — Insolvency and Bankruptcy | NCLT (2024)

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IN THE NATIONAL COMPANY LAW TRIBUNAL KOLKATA BENCH (Court-II) KOLKATA

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IA No. 1617 of 2023

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C.P. (IB) No. 176/KB/2018

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An application under Section 60(5) of the Insolvency and Bankruptcy Code,

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2016,

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read with

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Rule 11 of the National Company Law Tribunal

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Rule, 2016.

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In the matter of:

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Impex Metal & Ferro Alloys Ltd.

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…APPLICANT

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Versus

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The Chief Engineer, The Transmission Corporation of Andhra Pradesh & Anr.

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...RESPONDENT

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Date of Pronouncement: 16.04.2024

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CORAM:

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SMT. BIDISHA BANERJEE, HON’BLE MEMBER (JUDICIAL) SHRI ARVIND DEVANATHAN, HON’BLE MEMBER (TECHNICAL)

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Appearances (via Video Conferencing/Physical):

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Mr. Zeeshan Haque, Adv. Ms. Tanvi Luhariwala, Adv. Mr. Supriyo Gole, Adv. Ms. Madhuja Barman, Adv.	] For the Applicant in ] IA(I.B.C)/2074(KB)2023 ] ]
Mr. Shaunak Mukhopadhay, Adv. Mr. Supriyo Gole, Adv. Ms. Madhuja Barman, Adv.	] For the Applicant in ] IA(I.B.C)/1617(KB)2023 ]
Mr. Joy Saha, Sr. Adv.	] In IA(I.B.C)/2074(KB)2023
Mr. Sidhartha Sharma, Adv. Mr. Rishav Dutt, Adv.	] For the Respondent No.1 in ] IA(I.B.C)/2074(KB)2023
Ms. Namrata Basu, Adv. Mr. Danish Taslim, Adv. Mr. S. Mitra, Adv.	] ] ]

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IN THE NATIONAL COMPANY LAW TRIBUNAL KOLKATA BENCH (Court-II) KOLKATA

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IA No. 1617 of 2023

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C.P. (IB) No. 176/KB/2018

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Mr. Rohit Kumar Keshri, Adv. ] For the Respondent in Mr. Ankit Chaurasia, Adv. ] IA(I.B.C)/1617(KB)2023 Mr. Devajoyti Barman, Adv. ] For the Respondent in Ms. S.B. Mallick, Adv. IA(I.B.C)/1618(KB)2023 Mr. Kaustubh Rai, Adv. ] For the Respondent in ] IA(I.B.C)/738(KB)2021

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Mr. Rahul Auddy, Adv. ] For the Liquidator Mr. Aditya Gooptu, Adv. ] Mr. Samir Kumar Bhattacharya, Adv. ] Liquidator Ms. Deblina Lahiri, Adv. ] For State Bank of India Ms. T. Chetri, Adv. ]

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O R D E R

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Per: Bidisha Banerjee, Member (Judicial)

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The Court conveyed through a hybrid mode.

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Heard, Ld. Counsels present for the parties.

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The applicant of Impex Metal and Ferroy Alloys seeks the following reliefs:

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a. “ To pass an order directing extinguishment of claims and liabilities of Respondent No.1 against the Applicant company prior to 16^th September 2021, i.e., the date of acquisition/purchase of the Applicant company by Auction Purchaser.

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b. To pass an order directing the Respondent No. 1 to refund an amount of Rs. 7,37,389/- as the same is not payable by the Applicant.”

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This Tribunal in I.A. (IB) No. 709/KB/2021 in C.P. (IB) No. 176/KB/2018, vide its Order dated 25.11.2021 granted conditional concession on the basis of going concern of the unit and further

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Page 2 of 6

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IN THE NATIONAL COMPANY LAW TRIBUNAL KOLKATA BENCH (Court-II) KOLKATA

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IA No. 1617 of 2023 C.P. (IB) No. 176/KB/2018

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observed that the said concession is subject to payment of renewal and license fees, the relevant extract being as under:

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“ In this factual conspectus, Mr. Joy Saha, learned Sr. Counsel for the appearing for the Applicant, submitted that the purchase and takeover of the Corporate Debtor as a ‘going concern’ as per the Liquidation Process Regulation by the Applicant will not be sufficient to run the operations of the Corporate Debtor. In order to ensure smooth running of the business of the Corporate Debtor, it is imperative that the Applicant is granted certain additional reliefs/concessions/relations and permissions which would be essential and necessary to run the business of the Corporate Debtor as a ‘going concern’. Such reliefs are only intended for the purpose of a successful running of the operations of the Corporate Debtor in the future when a new management will strive to bring it back to its feet as these are crucial to kickstart the business of the Corporate Debtor and achieve value maximisation of the Corporate Debtor . Mr. Joy Saha, therefore, urged the court to consider granting the reliefs and concessions prayed for vide Annexure ‘A’ of the Applicant”

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Page 3 of 6

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IN THE NATIONAL COMPANY LAW TRIBUNAL KOLKATA BENCH (Court-II) KOLKATA

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IA No. 1617 of 2023

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C.P. (IB) No. 176/KB/2018

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xxx xxx xxx xxx xxx xxx

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Viewed from this perspective, sale as a going concern implies that the corporate debtor will continue to exist, albeit under a new management. There is a seamless transition from the Liquidator to the purchaser. It envisages a wholesome transfer of immovable property, goods, employee, goodwill, etc. Further, there should not be a change of business after transfer.”

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Page 4 of 6

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IN THE NATIONAL COMPANY LAW TRIBUNAL KOLKATA BENCH (Court-II) KOLKATA

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IA No. 1617 of 2023 C.P. (IB) No. 176/KB/2018

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Sl. No	Prayer/ Annexure Clauses No.	Particulars of the reliefs and concessions prayed	Remarks
7	3(a)	Sale of the assets of the Corporate Debtor shall be binding on all stakeholders including the utility providers and all the utility providers shall continue to supply the utilities as may be required for survival of the Corporate Debtor	Granted
11	3(e)	The Corporate Debtor shall be deemed to be eligible to receive all consents, licenses, exemptions, approvals, rights, entitlements, extensions, waiver, benefits and privileges whether under law, contract, lease or license, which includes without limitation permission for change of land use by the concerned Governmental and/or Regulatory Authorities as may be required by the Corporate Debtor.	Granted subject to payment of renewal fees, if any, to such licensing authorities.

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Page 5 of 6

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IN THE NATIONAL COMPANY LAW TRIBUNAL KOLKATA BENCH (Court-II) KOLKATA

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IA No. 1617 of 2023

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C.P. (IB) No. 176/KB/2018

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In view of the above it is noted that Respondents would be at liberty to charge renewal fees but not arrear of maintenance prior to sale when the applicant had not even stepped into the shoes of the Corporate Debtor. Accordingly, the amount payable is required to be recast and balance (if any) be refunded to the Applicant. Let the same be done in four weeks with intimation to the Applicant.

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