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TMI Blog2021 (9) TMI 1207X X X X Extracts X X X X X X X X Extracts X X X X ..... 8-2019 is a preferential transaction under Section 43 of the Code. (b) this Hon'ble Tribunal may be pleased to direct the Respondents to jointly and/or severally pay a sum of INR 47,26,000/- to the Resolution Professional/Liquidator of the Corporate Debtor, as the case may be, along with interest at the rate of 18% from the date of receipt of the said amount by the Respondent No. 1 till the date of actual payment or realization, in terms of Section 44(1) (d) of the Insolvency and Bankruptcy Code, 2016. (c) This Hon'ble Tribunal may be pleased to declare that the preferential transaction entered into between the Corporate Debtor and Respondent no. 1 is illegal and void under Sections 43 and 44 of the Insolvency and Bankruptcy Code, 2016. (d) To pass such other or further order, as this Hon'ble Tribunal may deem fit under the facts and circumstances of the case. 2. The Corporate Insolvency Resolution Process (CIRP) as against the Corporate Debtor stood commenced by virtue of an order dated 20.12.2019 of this Tribunal pursuant to the Application filed by Park Chambers Limited under section 7 of the Code. 3. Vide the said Order the Applicant was appointed as Interim Resolution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... debt or other liabilities owed by the corporate debtor; and (b) the transfer under clause (a) has the effect of putting such creditor or a surety or a guarantor in a beneficial position than it would have been in the event of a distribution of assets being made in accordance with section 53. 8. The Applicant further submits that the distribution of assets of the Corporate Debtor if made in accordance with Section 53 of the Code, the Respondent No. 1 would have received a share alongside other unsecured financial creditors of the Corporate Debtor Company on a pro-rata basis. However, the payment of Rs. 47,26,000/- to the Respondent No 1 by the Corporate Debtor Company has put the Respondent No. 1 in a beneficial position above the other unsecured financial creditors of the Corporate Debtor Company. 9. The Applicant submits that the preferential transaction in favour of the Respondent No. 1 was made in the Financial Year 2018-19 i.e. preceding two years of the Insolvency commencement date. Therefore, the said preferential transaction in favour of Respondent No. 1 has been taken place within the look-back period under Section 43 (4) (a) of the Code. 10. The Applicant further subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Applicant has filed the Application merely on relying on the balance sheets of the Corporate Debtor for the Financial Years 2017-2018 and 2018-2019 wherein a transaction of payment of certain monies made to Respondent No. 1 in the ordinary course of business is reflected. The Applicant without any enquiry or review of any additional documents or materials alleged and concluded that certain transactions undertaken by the Corporate Debtor are preferential transaction. The said opinion was made without appointing any external agency/auditor/transaction review auditor and without relying on any other materials and documents have also determined the same to be preferential transaction. 17. The Respondent submits that the Applicant had not attempted to contact the Respondent No. 1 for seeking any documents or information as regards to the said transaction. The Respondent further states that the Applicant has suppressed the fact that the Respondent No. 2 had vide letter dated 06.08.2020 had raised objections regarding the Minutes of the first, second and third CoC meeting wherein the Respondent No. 2 had stated that the draft minutes were never circulated to them. The Applicant resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as given from the unsecured loan given by Respondent No. 1, hence the same was returned to the Respondent No. 1 on receipt of the same from M/s Mind Estates Private Limited. 23. Further the Respondents submits that it is evident from the the ledgers of the Corporate Debtor Company, that the Respondent No. 1 had been providing loans to the Corporate Debtor in the ordinary course of business since 2013 before the Corporate Insolvency Resolution Process of the Corporate Debtor Company commenced. The said loans were given from time to time to support the Corporate debtor Company in its business endeavors and were also repaid by the Corporate Debtor. Also it is seen that at the Respondent No. 1 had given unsecure interest free loans to the Corporate Debtor to support its business to the tune of Rs. 17,82,90,000/-. The transactions were for the benefit of the Corporate Debtor Company. 24. Therefore, it can be seen that the Respondent No. 1 had been ordinarily providing loans and getting repaid much before the look back period provided under Section 43 of the Code and it is part of the ordinary course of business of the Corporate Debtor, a payment of Rs. 47,26,000/- to Respondent No. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 019. The transaction of Rs. 47,26,000/- was a mere refund and forms part of regular business transaction. It was a bona fide transaction in regular course of business and not that of a preferential transaction under Section 43 of the Insolvency and Bankruptcy Code, 2016. The applicant has failed to provide such proof or documents to corroborate his submissions and term the transaction between Respondent No. 1 and Corporate Debtor Company as a Preferential Transaction. 29. The Resolution Professional has himself not made out his case and the transaction in question fails to be that of a Preferential Transaction, having been made in Ordinary course of business. There was no intent to deceive the company through this transaction nor the Corporate 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. 30. 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. 31. With the aforesaid observation we are not inclined to allow the application bearing IA No. 1396 of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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