2022 (11) TMI 294 - AT - Insolvency & Bankruptcy
Fraudulent initiation of insolvency proceedings by the Operational Creditor in collusion with the Corporate Debtor - It is submitted that Application under Section 9 was not a genuine Application - HELD THAT:- The facts of the present case make it amply clear that object of filing Section 9 Application by the Operational Creditor was not for resolution of insolvency of Corporate Debtor, but was an attempt to stop the implementation of RERA order and to take back the Project from the Appellant. Mr. Raj Kumar, the Director of M/s. Rudra Buildwell Constructions Pvt. Ltd. has been challenging the orders passed by the RERA in First Appeal and Second Appeal on behalf of the Corporate Debtor. The Operational Creditor, thus, Mr. Raj Kumar, who has filed Section 9 Application as Director of M/s. Rudra Buildwell Constructions Pvt. Ltd. has clearly identified himself with the Corporate Debtor and was espousing the cause of the Corporate Debtor by challenging the order of the RERA - The sequence of the events and the various proceedings taken with regard to Project in question by the Homebuyers as well as by the Corporate Debtor, indicate that CIRP initiated by the Operational Creditor by filing Section 9 Application was for purposes other than for the resolution of insolvency.
The reason given by Adjudicating Authority for rejecting argument of Section 10A was based on alleged acknowledgement letter dated 03.06.2021 received from the Corporate Debtor. When the date of default given by Operational Creditor in Section 9 Application is 31.03.2020, the mere fact that acknowledgement has been given by Corporate Debtor on 03.06.2021 accepting the debt, shall not change the date of default - the reasons given by the Adjudicating Authority that since acknowledgement is 03.06.2021, the date of default will become 03.06.2021 is not agreed upon.
The Adjudicating Authority itself formed an opinion that it has prima facie satisfied that Application is barred by Section 10A and thereafter time was granted by the Adjudicating Authority to file additional affidavit. The additional affidavit gives only explanation of letter by the Corporate Debtor acknowledging the debt dated 03.06.2021. The letter dated 03.06.2021 was also before Adjudicating Authority, when order dated 29.11.2021 was passed dismissing the earlier Application, which was dismissed as withdrawn.
The order dated 18.04.2022 is set aside and Company Petition No. IB-11/ND/2022 is dismissed as having been filed malifide for purposes other than resolution of insolvency of the Corporate Debtor - A penalty of Rs.25,00,000/- is imposed on Respondent No.2 - M/s. Rudra Buildwell Constructions Pvt. Ltd. through its owner Shri Raj Kumar to be paid within a period of one month by Bank Draft drawn in the name of “Pay and Accounts Officer, Ministry of Corporate Affairs” - Appeal allowed.