# In the matter of ESS DEE Aluminium Limited IA(IBC)800(KB)2022 In CP(IB)1284(KB)2019

> NCLT judgment dated 2023-01-17. Citation: TCN-2023-NCLT-05025. This case involves an application (IA(IBC)800(KB)2022) filed in an ongoing corporate insolvency…

- **Court:** NCLT
- **Order date:** 17 Jan 2023
- **Citation:** TCN-2023-NCLT-05025
- **Category:** IBC
- **Source page:** https://caseease.in/cases/ibc/nclt-division-bench-court-i-chenn/ess-dee-aluminium-limited-iaibc800kb2022-in-cpib1284kb2019-74d7f114

## Summary

### Background

This case involves an application (IA(IBC)800(KB)2022) filed in an ongoing corporate insolvency resolution process (CIRP) concerning ESS DEE Aluminium Limited. The CIRP was initiated following the admission of an application under Section 7 of the Insolvency and Bankruptcy Code, 2016, by the financial creditor, State Bank of India. Subsequently, the corporate debtor was ordered into liquidation, and a liquidator, Deepika Bhurga Prasad, was appointed. The applicant, Lucky Holdings Private Limited, participated in an e-auction for the sale of the corporate debtor as a going concern, submitting an earnest money deposit (EMD) of Rs. 2 crores. After being declared the highest bidder, a dispute arose regarding the payment of the first installment due to a challenge to the

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## Facts

State Bank of India initiated CIRP against ESS DEE Aluminium Limited, leading to liquidation. Deepika Bhurga Prasad was appointed as the liquidator. Lucky Holdings Private Limited participated in an e-auction for the sale of ESS DEE Aluminium Limited as a going concern and deposited Rs. 2 crores as EMD. Lucky Holdings emerged as the highest bidder with a bid of Rs. 124.60 Crores. The liquidator called upon Lucky Holdings to deposit Rs. 29,15,00,000/- as the first installment by 11/05/2022. Trailblazer Edusol Private Limited filed IA(IBC)/397(KB)2022 challenging the e-auction. The Adjudicating Authority directed Lucky Holdings to be impleaded in the said application and the liquidator undertook not to proceed with the sale. Lucky Holdings requested postponement of the

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## Issues and analysis

### Issue 1: Whether the liquidator is entitled to forfeit the earnest money deposit (EMD) submitted by the …

**Ratio:** The legal principle applied is that forfeiture of earnest money is permissible only if

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**Reasoning:** The court reasoned that the liquidator had not pleaded or proven any loss suffered due to

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**Interpretation:** The interpretation of the law is that forfeiture of earnest money is a form of

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**Application:** In this specific case, the court applied the principle that forfeiture requires

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## Parties

- **Judges:** BIDISHA BA…; Balraj…
- **Appellants:** Lucky Holdings…
- **Respondents:** Ess Dee Aluminium…; Deepika Bhurga…

## Timeline

- **2020-02-14 — CIRP Comm…**: Application under Section 7 of IBC admitted, commencing Corporate Insolvency Resolution…
- **2021-10-08 — Liquidation…**: Adjudicating Authority ordered the liquidation of the corporate debtor. Deepika Bhurga…

## Legal provisions

- [Insolvency and Bankruptcy Code, 2016, Section 60(5) — Adjudicating Authority for corporate persons](https://caseease.in/legal-provisions/insolvency-and-bankruptcy-code-2016/section-60)

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