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2020 (7) TMI 30 - Tri - Insolvency and BankruptcyMaintainability of application - Restoration of currency of CIRP without the knowledge and/or consent of the Applicant - HELD THAT:- The contention that this application is not maintainable is found devoid of any merit. As per section 66(1) of the Code, if the AA is satisfied that during the corporate insolvency process the directors of the CD withdrawn money from the bank account of the CD with an intent to defraud creditors or for any fraudulent purposes, pass an order against the person liable to make such contributions to the assets of the CD. As per section 74 (1) if the AA is satisfied that the CD or any of its officer violates the provisions of section 14, any such officer who knowingly or willfully committed such contravention shall be punishable with fine not exceeding 3 lack or with imprisonment not exceeding 3 years or with both. The allegations leveled by the RP as against the directors are perfectly falls under these provisions. Therefore, contentions of the directors that this application is not at all maintainable is devoid of any merit. A prudent law obedient man never expected to do this kind of disobedience and breach of their own undertaking. What is attempted on the side of the directors is that they are willing to pay back the amount less ₹ 2 crore allegedly paid to the suppliers of raw materials as stated above and that for payment they need some more time due to disruption of bank transactions due to lock down. Neither the proposals discussed above seems to have genuine nor it would be workable. The conduct and approach of the directors indicates that they were willfully evading repayment on lame excuse under the guise of the lock down due to COVID-19. The directors were guilty of willful disobedience of the orders of the appellate Tribunal. The ingredients to be satisfied under section 74(1) of the Code stand proved - Being found guilty of violating the moratorium under section 14 of the code, the directors are punishable with imprisonment for a term which shall not be less than three years, but may extend to five years or with fine which shall not be less than one Lakh rupees, but may extend to three lakh rupees, or with both. However, this Adjudicating Authority has no power to impose sentence/imprisonment. So it is left to the RP to move application before the IBBI or to file criminal complaint before the police for trial of complaint cases by the designated special court under section 435 of the Companies Act, 2013. The directors/ Mr. Manoj Daga and Mr. Deepak Daga are directed to refund an amount of ₹ 5,50,12,170.22 to the account of the CD with in two weeks from the date of receipt of an email copy of this order - Application disposed off.
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