TMI Blog2020 (11) TMI 626X X X X Extracts X X X X X X X X Extracts X X X X ..... [Dr. Ashok Kumar Mishra] Member (Technical) For the Appellant : Mr.Sagar Rajiv Agnihotri, Advocate For the Respondent : Mr. Abhishek Anand, Advocate JUDGMENT DR. ASHOK KUMAR MISHRA, TECHNICAL MEMBER 1. The Appellants Ms. Ratna Singh w/o Mr. Brijinder Singh and Mr. Brijinder Singh both Ex-Directors of M/s.Theme Export Pvt. Ltd., have filed this Appeal under Section 61 read with Section 33(2) of the Insolvency and Bankruptcy Code, 2016 (in short I B Code, 2016 ) against the Impugned order dated 29.07.2020 passed by the Adjudicating Authority ( National Company Law Tribunal, New Delhi ) in CA.121/ND/2019 in Company Petition No.(IB) 323(ND)/2019. The Adjudicating Authority has allowed the Petition and ordered the liquidation of the Corporate Debtor - and appointed Liquidator Mr.Vikram Bajaj, Ex- Interim Resolution Professional (for short IRP) of the same company having registration No.IBBI/IPA-002/IP-N-00003/2016-17/10003. 2. The Adjudication Authority has passed the liquidation order primarily on the basis of the recommendation of Committee of Creditors (for short CoC ) and the CoC has recommended liquidation with the strength of 98.5% voting shares. Wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y at Okhla along with personal/corporate guarantees of the three Directors and the same was getting renewed by the bank since 2005. The Corporate Debtor performance has stared deteriorating from the Financial Year 2015-16 from ₹ 100 Crore approx. to ₹ 30 Crores approx. in the year 2018-19 on account of various frauds leading to operation and mismanagement by Mrs. Nandani Singh, Director of Corporate Debtor alongwith certain other related parties and employees. All these failures laid to nonpayment of statutory dues and also the Appellants perforce resigning from the Corporate Debtor from 12.03.2019. The Corporate Debtor s Bank was Bank of Baroda (BOB) 55 Madhuvan, Nehru Place Branch, New Delhi 110020. c. Mr. Ravinder Rai- Ex-Accountant of the corporate debtor has provided to the IRP all the data of the illegal acts committed by Mrs. Nandani Singh a Director of the corporate debtor on 18.11.2019 prior to filing of liquidation proceedings by IRP. d. The Appellants have also written to Mrs. Nandani Singh demanding for explanation for the theft and the criminal breach of trust amounting to Oppression and Mismanagement apart from visiting Bank of Baroda and informi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Liquidator has also stated that the documents are being reviewed by the Forensic Auditor M/s. K.R.A and Company Chartered Accountants to certain transactions under section 43, 45 and 66 of I B Code 2016 and an appropriate application shall be filed by the liquidator based on findings. It is also submitted that no infirmity in the impugned order dated 29.07.2020 passed by the Adjudicating Authority. He is stretching the issue of commercial wisdom of the Committee of Creditors (CoC) who decided with over 98% voting to liquidate the Company and cited certain Hon ble Apex Court Judgment like Committee of Creditors of Essar Steel India Limited Vs. Satish Kumar Gupta Ors. Civil Appeal No. 8766-67/2019 and K.Sashidhar Vs. Indian Overseas Bank Ors., Civil Appeal No. 10673 of 2018. After considering the fact that there are no chances of revival of the corporate Debtor and has resolved the liquidation of the Corporate Debtor and hence this Application needs to be dismissed. 7. We have carefully considered the pleadings of the parties and gone through certain documents and it observed the followings: a. The CoC comprises of three financial creditors with voting shares as stated belo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 51 and Section 66, these are all related to undervalued transactions, avoidable transactions, defrauding creditor, fraudulent trading or wrongful trading etc. The Liquidator, who is also erstwhile IRP, is required to take necessary action and the Bank of Baroda is to provide appropriate assistance. Bank of Baroda was supposed to check flow of inventory, cash to cash cycle etc. as they have lent ₹ 25 Crores. g. The Appellants have cited the Hon ble Apex court judgment S.P.Chengalvaraya Naiduvs Jagannath, 1994 SCC (1) 1/1994 AIR 853, it was held that fraud avoids all judicial acts, ecclesiastical or temporal. It is a settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non-est in the eyes of law. 8. We have also gone through Hon ble Supreme court judgments in the case of K.Shasidhar Vs. Indian Overseas Bank in Civil Appeal No. 10673 of 2018 (at para 33 42) and in the case of CoC of Essar Steel Vs. Satish Kumar Gupta and ors. Civil Appeal No. 8766 -67 of 2019 (para 31). These citation confirms that commercial wisdom of the CoC cannot be looked into by either Adjudicating Authority or Appellate Authority. 9. Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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