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2021 (3) TMI 460 - Tri - Insolvency and BankruptcySeeking directions to be passed upon Respondents to jointly and severally to repay the sum due to the Corporate Debtor - Section 44 of the Insolvency and Bankruptcy Code, 2016 - Maintainability of application after the Resolution Plan is approved. Whether the Resolution Professional has filed the application is in consonance with the Code and Regulations governing Corporate Insolvency Process? - HELD THAT:- It is important to examine whether the RP has adhered to the timeframe in bringing the application for avoidance of preferential transactions under section 44 of the Code. From the table produced, it is clear that the timeline as provided in regulation 35A CIRP Regulations have not been adhered to. That RP has filed the application on the 389th day of the CIRP period. Moreover, the most vital essence of regulation 35A(3) of the CIRP Regulations is missing in the present case, i.e., the determination to be made by the RP that there are preferential transactions. The fact cannot be avoided that the RP had filed an application for approval of the Resolution Plan on 14.07.2020 and thereafter filed an application under Section 43 of the Code on 24.07.2020. The Resolution Plan was approved on 12.08.2020. On perusal of the order dated 12.08.2020, it is apparent that the RP had prayed for urgent hearing of the application for approval of the Resolution Plan. The RP was duty bound to file the application for preferential transaction within time and also seek for urgent hearing of the application before the plan is approved. Once the Resolution Plan is approved, the Corporate Debtor is managed by a new management and the RP becomes functus officio. An application for avoidance of preferential transaction cannot be carried on by the Resolution Professional on behalf of the Corporate Debtor. Whether this application can survive after the Resolution Plan is approved? - HELD THAT:- The feeling is inescapable that the RP has filed the application under section 43 read with section 44 of the Code only to avoid adverse scrutiny on the part of the IBBI and not with any real intention to pursue the alleged preferential transactions to their logical end. That may be the only plausible reason for filing the section 43 application after filing the application for approval of resolution plan. Application dismissed.
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