TMI Blog2021 (9) TMI 1207X X X X Extracts X X X X X X X X Extracts X X X X ..... orporate debtor Company had any other ulterior motive other than merely re-paying the Respondent her advanced amount for booking of office premise with M/s Mind Estates Private Limited - Moreover, the Applicant has failed to conduct Forensic Audit which he was supposed to do, to bring out the relevant facts for moving this Application forward. Application allowed. - I.A.NO.1396/MB/C-II/2020 In C.P (IB) No. 3540/MB/C-II/2018 - - - Dated:- 23-9-2021 - Hon ble Member (Judicial) Mr. Ashok Kumar Borah And Hon ble Member (Technical) Mr. Shyam Babu Gautam For the Applicant : Mr. Nirman Sharma a/w Jayanta Kar i/b Jalan Co. For the Respondent : Mr. Pulkit Sharma a/w Mr. Udit Mehta i/b M/s Crawford Bayley ORDER Per : Ashok Kumar Borah, Member ( Judicial ) 1. The present application is moved by the Resolution Professional under Section 43 (1) and 44 of Insolvency and Bankruptcy Code, 216 (hereinafter referred to as Code ) of the Corporate Debtor Company namely, GRL Tires Private Limited (hereinafter called as the Corporate Debtor ) seeking following reliefs :- (a) this Hon ble Tribunal may be pleased to declare that the transfer of INR 47,26,000/- by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent No. 1 in lieu of the said loan has been reduced to ₹ 71,49,000/- (Rupees Seventy-One Lakhs Forty-Nine Thousand Only) as on 31.03.2019. The said reduction in the amount outstanding paid to the Respondent No. 1 in lieu of the antecedent debt which revealed that a sum of ₹ 47,26,000/- (Rupees Forty Seven lakhs Twenty Six Thousand Only) was already paid by the Corporate Debtor Company to the Respondent No. 1 during the Financial Year 2018-19. 7. The Applicant further submits that the said payment of ₹ 47,26,000/- (Rupees Forty Seven lakhs Twenty Six Thousand Only) was made by the Corporate Debtor Company in preference to other creditors of the Corporate Debtor, thereby putting the Respondent No. 1 in a beneficial position than other creditors in the event of distribution of assets in accordance of Section 53 of the Code thereby satisfying the criteria of preferential transaction under Section 43 (2) (b) of the Code which reads under :- 43 (2) (a), (b) .. (2) A Corporate Debtor shall be deemed to have given a preference, if (a) there is a transfer of property or an interest thereof of the corporate debtor for the benefit of a creditor or a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Creditors (CoC) in its 2nd meeting held on 07.02.2020. 13. The Applicant vide an Email dated 13.05.2020, had requested the Respondents to repay the said amount of ₹ 47,26,000/-. The Applicant had also informed the Respondents that if they fail to repay the said preferential amount, then the Applicant would initiate proceedings before this Hon ble Tribunal for avoidance of the preferential transaction. The Applicant till date has received no reply or evidence from the Respondent No. 2 and 3 that the said amount is not a preferential transaction. 14. The Applicant submits that sub-regulation (3) of Regulation 35(A) of the CIRP Regulations requires that upon determination with regard to the preferential transaction, the Resolution professional requires to apply to the Adjudicating Authority within 135th day from the Insolvency commencement date. The said day fell on 03.05.2020 however, due to nation wide lockdown due to Covid-19 pandemic the Applicant was unable to file the Application. After exclusion of the period of lockdown in the State of Maharashtra, the 135th day of CIRP was 20.09.2020 and the Applicant filed the present Application in July, 2020. 15. The Respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Respondent No. 1 had given an unsecured loan to the tune of ₹ 17.97 Crore during the period of August and September, 2013 and the balance as on 31.03.2014 was ₹ 17,82,90,000/-. 20. Out of the said unsecured loan given by Respondent No. 1, an amount of ₹ 51 Lakh was given as an advance to M/s Mind Estates Private Limited for booking of office premises. Out of total amount of ₹ 51 Lakh given as an advance to M/s Mind Estates Private Limited an amount of ₹ 1,00,000/- was given on 25.11.2013 vide cheque no. 029002 drawn on Central Bank of India and ₹ 50,00,000/- was given on 27.11.2013 vide NEFT/RTGS transfer. 21. However, the purchase of commercial office from M/s Mind Estates Private Limited was not materialized due to disruption in business operations resulting in return of ₹ 51 Lakh by M/s Mind Estates Private Limited on 13.09.2018 to the Corporate Debtor due to cancellation of booking. On receipt of ₹ 51 Lakh from M/s Mind Estates Private Limited, the Corporate Debtor returned ₹ 47,26,000/- to Respondent No. 1, whose loan amount was utilized for booking of office premises. 22. The Respondent further submits that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a mere refund of amount that was advanced to M/s Mind Estates Private Limited for booking of office premises for the Corporate Debtor Company even before the initiation of CIRP proceedings. 27. The Applicant claims that there was no business transaction between Respondent No. 1 and the Corporate Debtor Company in the ordinary course of business but it is observed that until September, 2013, Respondent No. 1 had given unsecured loan to the Corporate Debtor Company to the tune of ₹ 17.97 Crore and the balance as on 31.03.2014 was ₹ 17,82,90,000/- as evident in the Ledger Account of the Respondent No. 1 in the books of the Corporate Debtor Company. Thus, Respondent No. 1 had ordinarily been providing loans and getting repaid which proves that the Corporate Debtor Company and the Respondent No. 1 were into business transactions on regular basis. It is important to point out that the Respondent No. 1 had been providing loans to the Corporate Debtor Company time and again to meet the daily business operation expenses and continue the business activities which is apparent vide leger Account submitted by the Respondent No. 1. 28. It is also pertinent to note that the Fina ..... X X X X Extracts X X X X X X X X Extracts X X X X
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