Home Case Index All Cases Insolvency and Bankruptcy Insolvency and Bankruptcy + AT Insolvency and Bankruptcy - 2019 (8) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2019 (8) TMI 1710 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHISeeking reversal of the amounts debited from the account of the ‘Corporate Debtor’ maintained with the ‘ICICI Bank Limited’ before the ‘insolvency commencement date’ - main plea taken by the Appellant, ICICI Bank is that the ‘Resolution Professional’ before filing an application under Section 43(1) of the I&B Code formed no opinion independently nor afforded an opportunity to the Appellant to explain about the transactions in question - HELD THAT:- Sub-section (3) (a) of Section 43 of the ‘I&B Code’ makes it clear that ‘preferential transaction’ does not include transfer made in the ordinary course of the business or financial affairs of the ‘Corporate Debtor’ or the transferee - As per sub-section (4) of Section 43 of the ‘I&B Code’ preference shall be deemed to be given at a relevant time, if it is given to a related party during the period of 2 years preceding the insolvency commencement date; or a preference is given to a person other than a related party during the period of one year preceding the insolvency commencement date. In the present case, the transactions were made by the Appellant Bank on 8th December, 2017, 11th December, 2017 and 14th December, 2017, as per ‘Renewal Credit Arrangement Letter’ letter dated 20th January, 2017 which was valid up to 16th December, 2017 - Admittedly, the Appellant Bank is not a related party and, therefore, for the purpose of relevant time clause (b) of sub-section (4) of Section 43 of the I&B Code can be said to be applicable i.e. period of one year of ‘insolvency commencement date’. The application under Section 7 was admitted on 8th December, 2017 and the ‘Resolution Professional’ was appointed on the said date. The order was passed on 8th December, 2017 and was pronounced on 15th December, 2017, and uploaded in the website - In the present case the application under Section 7 of the ‘I&B Code’ was admitted on 8th December, 2017 and the ‘Interim Resolution Professional’ was appointed on the same date. Therefore, the ‘corporate insolvency resolution process’ commenced on 8th December, 2017. The Adjudicating Authority has failed to notice the fact that all the transactions were made on or after the date of commencement of the ‘corporate insolvency resolution process’ and in ordinary course of business and in view of such position the impugned order dated 12th March, 2019 cannot be upheld - appeal allowed - decided in favor of appellant.
|