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TMI Blog2021 (1) TMI 1223X X X X Extracts X X X X X X X X Extracts X X X X ..... mittances of USD 894,000/-, to be returned to the Bank Account of the Corporate Debtor along with applicable interest at the rate of 18% p.a. calculated from the date of receipt of payments till actually repaid. b. The Applicant/Suspended Director be released from the process of Corporate Insolvency by revoking the Order of this Tribunal dated 7th November, 2019 in TIBA/25/KOB/2019 in IBA/598/2019 by invoking the inherent powers of this Tribunal and thereby preventing further abuse of process of this Tribunal and impose heavy costs on the Respondent No.1/Operational Creditor with an amount, at least equal to the value of the CIRP Costs. c. To impose penalty for malicious proceedings initiated by the Respondent No.1/Operational Creditor; 2. The brief facts of the case are as under: This Tribunal by its Order dated 7th November, 2019 admitted TIBA/25/KOB/2019 filed by M/s Roxcel Trading GmbH, and initiated CIRP of the Corporate Debtor declaring moratorium. 3. The Operational Creditor's claim, as per the Form-3 and Form-4 against the Corporate Debtor, dated 22nd March, 2019 is as follows: Sl. No. DATE INVOICE NO. AMOUNT 1. 06.03.2017 2017 INV02295 USD 1,18,958.40/- 2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... having different invoice numbers. This was a balance remaining payable for Invoices issued to the Corporate Debtor. Further, it is stated that there has not been any instruction with regard to appropriation of such payments and, therefore, the Corporate Debtor had accordingly recorded the same and has also been reflected in the Financial Statements of the Corporate Debtor. Moreover, it is stated that in order for such apportionment to be made, lawfully, the Respondent No.1/Operational Creditor has to seek consent and approval from the Authorised Dealer of the Corporate Debtor, which is the Bank of Baroda. 7. The Applicant stated that there is no such invoices in the name of the said Company or Matheel. The same line has also been repeated as a reply to receipt of all three SWIFT payments, by the Respondent No.1/Operational Creditor. In spite of affirming to the fact that there is no relevant invoice existing or any instruction with regard to appropriation, the Respondent No.1/Operational Creditor has gone ahead and adjusted the same. 8. It is also stated that the account of the Corporate Debtor for the Financial Year ending 31st March, 2019 has already been audited on 25th July, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Creditor filed a counter stating that this Miscellaneous Application is vexatious, mischievous, ill-founded and illogical and therefore deserves to be dismissed. They have also raised the maintainability of this application. The applicant is attempting to challenge/appeal the order dated 7/11/2019 which attained finality, in order to prolong the CIRP. Moreover, the application is time barred and the same is liable to be dismissed. 13. They have further stated that the claim made by them before the IRP was genuine, bonafide and borne by records. They have also stated that they filed an IA(IBC)/33/KOB/2021, seeking certain reliefs, which is pending consideration. 14. Their further contention is that false pretext adopted by the Applicant is fallacious, mischievous and deserves to be dismissed. The Applicant is attempting to mislead this Tribunal falsely alleging that the payments of USD 894,000 was made to the 1st Respondent without an underlying debt. The Corporate Debtor under the aegis of the Applicant had transferred the amounts to the 1st Respondent for the supply of materials, which is evident from the Invoices raised by the 1st Respondent as well as the e-mail correspondenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustries (a Company incorporated in Kingdom of Saudi Arabia) wherein the Applicant/Mr. Shameel E.P is a Common Director, since the amount has been remitted by the Corporate Debtor against import through proper banking channel in compliance with the RBI Regulations. Any apportionment without due authorization from the proper banking channel is illegal and would amount to violation of Section 10(6) of FEMA and RBI Import Regulations. As against the total claim of USD 4,68,920.10 against the invoices dated 3/9/2017 & 13/10/2017, the RP has not approved the USD 3,12,613.40 as two third concession was offered by the 1st Respondent against the disputed invoices. He has also stated that the IA(IBC)/33/KOB/2021 filed by the 1st Respondent herein is pending before this Tribunal for orders. 18. We have heard the learned counsel for the applicant as well as the learned counsel for respondents. We have thoroughly perused all the case records. 19. The present application has been filed by the applicant under Section 60(5) of the IB Code. Section 60(5) of the IB Code is reproduced below: - (5) Notwithstanding anything to the contrary contained in any other law for the time being in force, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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