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2023 (8) TMI 356 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , CHENNAIPreferential Transactions - Validity of impugned order - error in accepting the conclusions in Forensic Report - Delegation of Powers of the Resolution Professional or not - HELD THAT:- It is brought to the fore, that the Corporate Debtor, had transferred Sums, from its Bank Account, to the Appellants / Respondents, with a view to Discharge its Antecedent Operational Debt, and by virtue of the Payments so made, the Appellants / Creditors, were placed in a higher Beneficial Pedestal, than that of the Financial Creditors, when Distribution of Assets, are made as per Section 53 of the Code. In the instant case, the Transactions that took place between the period from 27.12.2019 and 12.04.2021, were rightly taken into account, and undoubtedly, the period specified in Section 43 (4) (a) of the Code, is fulfilled, considering the fact that the Insolvency beginning date, was 21.12.2021, and the Transactions, were held between the Related Parties / Appellants / Respondents, being the Former Directors of the Corporate Debtor. No wonder, the lookback period of two years, squarely applies to the facts of the instant case. Although, on behalf of the Appellants / Respondents, a stand was taken (Before the Adjudicating Authority), that the Transactions, were made in the Ordinary Course of their Business, and the amounts, withdrawn from the Corporate Debtor’s Account, etc., and usurping the same in respect of the Antecedent Debt, cannot tantamount to carrying on business in an ordinary manner of the Corporate Debtor, or in the Financial Affairs of the Respondents. Looking at from any angle, the impugned transactions, are not exempted transactions, as per Section 43 (3) of the Code, in the considered opinion of this Tribunal - In the present case, the NPA, was made on 23.02.2021 and the transactions, pointed out by the Appellants / Respondents, were before the earlier Date of the NPA, is not omitted. As far as the present case is concerned, on account of the Preferential Transactions, the Individual and the Companies, were gained at the cost of Creditors and in Law, the Appellant Nos. 1, 3 and 5 / Respondent No. 1, 3 and 5 and Paptrade India Pvt. Ltd. / Company (6th Respondent in IA (IBC) / 206 / KOB / 2022, are in Preferential Transaction. The impugned order passed by the Adjudicating Authority / Tribunal, in directing the 1st Appellant / 1st Respondent, to pay an amount of Rs.3,96,04,622/-, the 2nd Appellant / 3rd Respondent, to pay an amount of Rs.30,39,400/- and the 3rd Appellant / 5th Respondent, to pay a Sum of Rs.37,86,943/-, and the Paptrade India Pvt. Ltd. (6th Respondent in IA (IBC) / 206 / KOB / 2022), to pay a Sum of Rs.47,13,869/-, within a month from the date of Order, failing which, the amounts will carry 12% Simple Interest, till the date of Realisation, is free from any Legal Infirmities. Accordingly, the Appeal, sans merits and it fails. Appeal dismissed.
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