TMI Blog2021 (4) TMI 522X X X X Extracts X X X X X X X X Extracts X X X X ..... pplicant as to this transaction being preferential transaction, under Section 43 of I B Code, cannot be accepted. Even otherwise, while relying on Regulation 35 A of CIRP Regulations a specific timeline has been provided, by which the Resolution Professional has to form an opinion if the Corporate Debtor has been subjected to any of the objectionable transactions - The objectionable transactions including preferential transactions cannot be an unending process. The examination has to commence on the insolvency commencement date. The Resolution Professional has to form an opinion by the 75th day of commencement of CIRP. If the Resolution Professional comes to the conclusion that the Corporate Debtor has been subject to preferential transactions, the determination has to be made by the 115th day commencement of CIRP. On verification of the records, it is seen that even though an Application for avoidance of preferential transactions has been filed by the Applicant on 04.01.2021 [after curing the defects], he did not press for the same on 08.01.2021 the date when the Resolution Plan was approved. Once a Resolution Plan is approved, the Corporate Debtor is managed by a new manag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5015492.00 0 5015492.00 2 Joseph Joseph 1139201.00 0 1139201.00 3 Mikesh Joseph 2407593.00 2188500 219093.00 4 Sumesh Joseph 164461.00 0 164461.00 5 Rajesh Joseph 1357597.00 87500 1270097.00 Total 10084344.00 2276000 7808344.00 4. The Respondents who are the Managing Directors and suspended Directors of the Corporate Debtor filed reply to the Application stating that the Company s account for the Financial year 2018-2019 was audited by M/s. Maharaj N R Suresh and Co and filed a Report on 20.05.2020. The Report states that the Respondent No.1 Company under the head other payables is required to make payments of an amount of ₹ 1,20,57,031/- [One Crore Twenty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en at the time of or after the signing of a security agreement that contains a description of such property as security interest and was used by corporate debtor to acquire such property; and (ii) such transfer was registered with an information utility on or before thirty days after the corporate debtor receives possession of such property: Provided that any transfer made in pursuance of the order of a court shall not, preclude such transfer to be deemed as giving of preference by the corporate debtor. Explanation. -For the purpose of sub-section (3) of this section, new value means money or its worth in goods, services, or new credit, or release by the transferee of property previously transferred to such transferee in a transaction that is neither void nor voidable by the liquidator or the resolution professional under this Code, including proceeds of such property, but does not include a financial debt or operational debt substituted for existing financial debt or operational debt. (4) A preference shall be deemed to be given at a relevant time, if- (a) it is given to a related party (other than by reason only of being an employee), during the period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Regulation 35 A of CIRP Regulations a specific timeline has been provided, by which the Resolution Professional has to form an opinion if the Corporate Debtor has been subjected to any of the objectionable transactions. Regulation 35A is as under: - Regulation: 35A. Preferential and other transactions. (1) On or before the seventy-fifth day of the insolvency commencement date, the resolution professional shall form an opinion whether the corporate debtor has been subjected to any transaction covered under sections 43, 45, 50 or 66. (2) Where the resolution professional is of the opinion that the corporate debtor has been subjected to any transactions covered under sections 43, 45, 50 or 66, he shall make a determination on or before the one hundred and fifteenth day of the insolvency commencement date, under intimation to the Board. (3) Where the resolution professional makes a determination under sub-regulation (2), he shall apply to the Adjudicating Authority for appropriate relief on or before the one hundred and thirty-fifth day of the insolvency commencement date. 12. The objectionable transactions including preferential transactions cannot be an un ..... X X X X Extracts X X X X X X X X Extracts X X X X
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