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2021 (12) TMI 1325 - Tri - Insolvency and BankruptcySeeking transfer of shares - if the shares have been disposed of by the Respondents, then the proceeds of the same be directed to be credited to the account of the Corporate Debtor - preferential transaction - HELD THAT:- The scope and nature of transactions enumerated under Section 43, 45, 50 and 66 of IBC, 2016 are independent and distinct. As to the present case, it is seen that the RP has moved the MA/731/2019 under Section 43 and 44 of IBC, 2016 and hence there is no ambiguity in the Application being filed by the RP and the scope of examination of the present Application will revolve around the tenets of Section 43 of IBC, 2016. Section 43 of IBC, 2016 deals with the what is Preferential Transaction and Section 44 of IBC, 2016 deals with the orders to be passed in case of preferential transaction. A cursory reading of Section 43 of IBC, 2016 in terms of the Judgment of the Hon'ble Supreme Court in the matter of Anuj Jain [2020 (2) TMI 1259 - SUPREME COURT] contemplates that where the liquidator or the resolution professional is of the opinion that the corporate debtor has at a relevant time given a preference in such transaction and in such manner as laid down in sub-section (2) to any persons as referred to in sub-section (4), he shall apply to the Adjudicating Authority for avoidance of preferential transaction and for, one or more of the orders referred to in Section 44. Thus, the preliminary enquiry which this Adjudicating Authority is required to do is to first ascertain as to whether the Corporate Debtor has given any preference. Only thereafter, the Adjudicating Authority is required to examine as to whether the scope of enquiry of giving preference, has happened within and during the specified time, referred to as "relevant time". The transaction sought to be impugned by the Resolution Professional does not pertain to 'Corporate Debtor giving preference over other creditors', however it relates to a creditor who is invoking the pledge on account of default by the Corporate Debtor and under no stretch of imagination the said transaction can be brought under the confines of 'preferential transaction' as defined under Section 43 of IBC, 2016 - During the course of arguments and even in the rejoinder it is stated that pending admission of Section 7 Application, the Corporate Debtor has paid a sum of ₹ 1 Crore to Union Bank of India over the total default amount of ₹ 10 Crore. It is also seen from the record of proceedings that no direction was given by this Adjudicating Authority to pay any amount to the Financial Creditor. The Corporate Debtor, during the pendency of Section 7 Application has paid a sum of ₹ 1 Crore to the Financial Creditor and if we apply the definition of Section 43 of IBC, 2016 only the said transaction made by the Corporate Debtor would attract 'preferential transaction'. However, it is seen that the RP has not moved any Application seeking to bring the said amount paid to the Financial Creditor during the pendency of Section 7 Application to the tune of ₹ 1 Crore as 'preferential transaction'. The Adjudicating Authority is vested with the scope of enquiry into the transactions which have happened prior to the Insolvency Commencement Date only in respect of transactions covered under Section 43, 45, 49 and 66 of IBC, 2016 - thus, it is seen from the Information Memorandum that the above extracted excerpt was the information provided to the successful Resolution Applicant and as such the successful Resolution Applicant cannot now come and claim that since he has paid a sum of ₹ 80 Crore more in the Resolution Plan he is entitled to get this transaction reversed. The Resolution Applicant has given the Resolution Plan based upon the information as given in the Information Memorandum and upon perusal of the Information Memorandum, it seen that pledge of shares of the Corporate Debtor in the 2nd Respondent Company has been invoked by Apollo Distilleries and Breweries Private Limited and as such the said shares were not part of the Information Memorandum, however, the successful Resolution Applicant cannot now strengthen his case by referring to the clauses in the Resolution Plan by stating that they are entitled to the said proceeds. In any case, it is held that the impugned transaction does not even fall under Section 43 of IBC, 2016. Thus, the alleged transaction filed by the Resolution Professional in respect of the Corporate Debtor does not constitute 'preferential transaction' in terms of Section 43 of IBC, 2016 - application dismissed.
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