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2024 (5) TMI 999 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , NEW DELHIMaintainability of proceedings under Section 66 of IBC, 2016 - Resolution Professional has not given clear opinion or determination or finding as required under Regulation 35 A - Fraudulent transaction or not - HELD THAT:- The Resolution Professional had informed the CoC that there are no matching assets/inventory with the Corporate Debtor. Only thereafter, Application under Section 66 IBC was filed thereby showing that the Resolution Profession had complied with the Regulation 35A of IBBI (Resolution Process for Corporate Persons), Regulation 2016. As per provisions of sub-section (1), the Adjudicating Authority can pass an order directing “any person”, who was party to carrying on the business of Corporate Debtor in such manner as to defraud creditors of the Corporate Debtor, or for any fraudulent purpose, to make him liable to make such contribution to the assets of the Corporate Debtor as it may deem fit. A plain reading clearly shows that action can be taken against ‘any person’ for recovery of amount involved in the fraudulent transaction. In the present case, there is a finding that Manoj Punamia was running several companies in its business of gold refinery. The finding of the Customs Department was that both the Appellant Company (RICL) and Corporate Debtor (RRPL) were being managed by Mr. Manoj Punamia. Mr. Manoj Punamia and his wife were said to be shareholders of the Appellant Company. In these circumstances, the appellant cannot be said to be a third party, as both RICL and RRPL are under the control of same person - This is a case where the outstanding of Appx. Rs. 158 Cr. was brought down to Rs. 31 Cr. by alleged entries so as to reduce the amount due to the Corporate Debtor thereby reducing likelihood of recovery, causing loss to the creditors of the Corporate Debtor. On similar facts, in the case of MR. NANDKISHORE VISHNUPANT DESHPANDE (RESOLUTION PROFESSIONAL FOR ROYAL REFINERY PVT. LTD. VERSUS SHRI BAIJU TRADING AND INVESTMENT PRIVATE LIMITED; MR. VISHAL CHOUDHARY; MR. GAURAV D PANWAR; MR. MANISH PANWAR; MR. MUKESH MEHTA AND RAKSHA BULLION VERSUS ROYAL REFINERY PRIVATE LIMITED [2021 (1) TMI 1322 - NATIONAL COMPANY LAW TRIBUNAL MUMBAI] the order of NCLT under Section 66 of IBC, 2016 was upheld by this Tribunal [2023 (7) TMI 958 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH], vide order dated 29.03.2023 - Similarly, in the case of Tridhaatu Kirti Developers LLP [2023 (1) TMI 455 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI] against the same respondents, who are also Respondents in the present appeal, the order of NCLT under Section 66 IBC was upheld by this Tribunal. Section 66 of IBC, 2016 empowers the Adjudicating Authority to pass an order for recovery from such fraudulent transactions as contribution to the assets of the Corporate Debtor. Such action has also been upheld by Hon’ble Supreme Court in the case of Phoenix Arc (P) Ltd. vs. Spade Financial Services Ltd. [2021 (2) TMI 91 - SUPREME COURT]. Thus, it is apparent that entries were made in its accounts by the Appellant to reduce its liability towards the Corporate Debtor - there are no reason to interfere with the order of the Adjudicating Authority. The Appeal is accordingly dismissed.
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