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2022 (5) TMI 1478 - AT - Insolvency and BankruptcyPreferential transaction - Financial Debt - novation of the earlier agreement with an entirely new agreement as per Section 62 of the Indian Contract Act, 1872 - disbursement of amount against the consideration of time value of money as required under Section 5(8) of the Code - Section 43 of I&B Code - HELD THAT:- It is undisputed fact that money has been received by the ‘Corporate Debtor’ in different tranches. The object of all these payments are to meet the requirement of ‘Memorandum of Understanding’ (appearing at page 67 of the appeal paper book) to consider it as advance payment towards future supply of gold coin/Jewelry against the estimated quantity as indicated by the buyer to take place after January, 2019 - It is also very much clear that at this time the advance payment was not attracting any interest. Now in the present case, it is very much clear that the MOU which was entered into long back in the year 2017 was meant for supply of goods in the form of gold coins/gold ornaments and order of initiation of CIRP in Raksha Bullion, Mumbai reflects that the CD was in regular business of buying and selling gold bar. So, the MOU apparently does not look under the grey area when it is also not proved that they are the related party. If they are not related party, then naturally the transactions falling within a period of one year can only be covered under even in the best scenario as preferential transactions. So, the entire amount cannot be put under preferential transaction. The Adjudicating Authority in its impugned order has exceeded its jurisdiction while recording the finding to the effect that the Appellant herein is a related party which is beyond scope of the petition filed in the Tribunal. The Resolution Professional has not filed any application for the preferential transaction as required under Section 43(1) of the Code - apparently while going through the petition and hearing of Ld. Counsels for both the parties, it is very much clear that the Adjudicating Authority on its own has recorded it a related party which is beyond the provisions contend in the Code either explicitly or implicitly. It reflects that the Resolution Professional, a statutory functionary, has not filed an application for initiation of proceedings under Section 43 of the Code in respect of preferential transactions and the Adjudicating Authority has passed the order, then it is supplementing it by fresh reason in through affidavit or otherwise. This is also not acceptable in the case of the Code - let the ‘Adjudicating Authority’ again go back into the details of these transactions which can be done even in the liquidation proceedings which has commenced from April 2021 and yet to be completed to ascertain and finally determine the voracity whether it is still a preferential transaction or not. Matter remanded back to Adjudicating Authority for reconsidering the case as a fresh case without getting influenced by any comments made in this Judgment and deciding the matter on the merits in accordance with law. Application disposed off.
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