TMI Blog2022 (4) TMI 74X X X X Extracts X X X X X X X X Extracts X X X X ..... no 2 and 3 are inducted as partners - All the three Respondents have done all the above at their own will within the look back period of one year i.e. the Application filed under IBC was admitted on 26/02/2020 and all these agreements and transfer of right to use of the Trademark started taking place from 01/02/2019 and onward. Both the R1 and R3 have agreed and given in writing that the RP has given wrong impression that Trade Mark has been sold to the Respondent No. 1. In fact, both the Respondents have confirmed that the CD has still ownership right over the Trade Mark CONCEPT EDUCATION and only right to use the Trade Mark is given for 15 years to R1 against payment of ₹ 10.00 lacs and imparting education for 300 students of the CD for a year. Respondents have further submitted that it was not exclusive transfer of Trade Mark but only right to use was granted for fifteen years meaning thereby that the Resolution Applicant has full right to use and having ownership of trade mark even after the aforesaid Deed of Agreement - Return of trademark to CD is the part of the Resolution Plan. Hence the right to use of the trade mark CONCEPT Educations is required to be canc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 06.05.2020 comprising of only the Operational Creditors and it was resolved vide agenda item No. 6 that the IRP Mr. Amit Pareek should be appointed as the Resolution Professional. 2.3 In the Fourth Meeting of the Committee of Creditors held on 03.09.2020, vide agenda item No. 7A, the sole Financial Creditor, M/s. Volkswagen Finance Pvt. Ltd. having 100% voting rights, resolved to replace the existing RP Mr. Amit Pareek and proposed the name of the Applicant herein Mr. Kamal Agarwal to be appointed as the incoming RP. 2.4 The application for replacement of RP was filed by the CoC vide IA No. 53 of 2020. This Hon'ble Bench directed Mr. Amit Pareek to file an application for replacement. Thereafter, Mr. Amit Pareek filed an IA No. 64 of 2020 seeking his replacement. This Hon'ble Bench vide Order dated 09.12.2020 passed an order for replacement of the RP and the applicant, thereafter was appointed as the Resolution Professional in the matter. 2.5 In absence of any expression of interest submitted by any prospective resolution applicant pursuant to the publication of Form G on 25.02.2021, the RP called the Seventh Meeting of the Committee of Creditors of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Trade Mark Registry has been attached and marked as Annexure B at pages 28-29 of the Application. 4.2 The right to use of the above Trade Mark CONCEPT Education for 15 years was sold for a mere ₹ 10 lacs (Rupees Ten lac only) on 08.02.2019 and the transaction was undertaken with a related party as defined under Section 5(24) of the Code is within relevant period of two years. 5. In order to demonstrate that there is an undervalued transaction, the Applicant has further submitted that: 5.1 The Respondent No. 1 is a Private Limited Company having its registered office at House No. 160, 4th Floor, Rajgarh Road, P.O. Lachitnagar, Guwahati, Assam - 781 007 and is the beneficiary of the undervalued transaction. 5.2 The Respondents No. 2 and 3 are the Suspended Directors responsible for causing huge loss to the Corporate Debtor by selling the right to use the trade mark CONCEPT Educations worth crores for mere ₹ 10.00 lacs. 5.3 The Corporate Debtor represented by the Respondents No. 2 and 3 entered into a partnership with the Respondent No. 1 by the name and style of M/s. Potential Concept Educations on 01.02.2019 under certain terms and con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he resolution professional, as the case may be, shall demonstrate that- (i) such transaction was made with any person within the period of one year preceding the insolvency commencement date; or (ii) such transaction was made with a related party within the period of two years preceding the insolvency commencement date. (2) The Adjudicating Authority may require an independent expert to assess evidence relating to the value of the transactions mentioned in this section. Order in cases of undervalued transactions. 48. (1) The order of the Adjudicating Authority under sub-section (1) of section 45 may provide for the following: (a) require any property transferred as part of the transaction, to be vested in the corporate debtor; (b) release or discharge (in whole or in part) any security interest granted by the corporate debtor; (c) require any person to pay such sums, in respect of benefits received by such person, to the liquidator or the resolution professional as the case may be, as the Adjudicating Authority may direct; or (d) require the payment of such consideration for the transaction as may be determined by an independent expert. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ership or a voting agreement; (l) any person who can control the composition of the board of directors or corresponding governing body of the corporate debtor; (m) any person who is associated with the corporate debtor on account of- (i) participation in policy making processes of the corporate debtor; or (ii) having more than two directors in common between the corporate debtor and such person; or (iii) interchange of managerial personnel between the corporate debtor and such person; or (iv) provision of essential technical information to, or from, the corporate debtor; 5.7 The transfer of the right to use of the trade mark CONCEPT Educations for a significant less value of ₹ 10.00 lacs only has not taken place in the ordinary course of business of the Corporate Debtor as there was no requirement of transfer the rights immediately after entering into partnership with the Respondent No. 1. 5.8 The Respondent No. 1 is using the trade mark CONCEPT Educations since 08.01.2019 and must have certainly derived huge benefits out of it. Hence, R1 is liable to account for the benefits enjoyed by it and also restore the benefits earned by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... more than a year by the Respondent No. 2. Further, it was not exclusive transfer of Trade Mark but only right to use was granted for fifteen years. Meaning thereby that the Resolution Applicant has full right to use and having ownership of trade mark even after the aforesaid Deed of Agreement. As such, question of undervalue sale of trade mark does not arise, more particularly when there is no sale of Trade Mark. Right to use of Trade Mark cannot be considered as sale of Trade Mark. 7.5 At the time when situation was averse to the Respondent Company Concept Eduventures Pvt. Ltd. and the liability in the market as well as pending salary of the faculties was increasing due to unwanted expansion of the branches of the corporate debtor, the suspended directors had no other alternative except to sell its assets. However, that time as ordinary course of business only good deal they received was to grant right to use the Trade Mark to the Respondent No. 1 for education of more than 300 students and rupees Ten lac. The said fact has been well within the knowledge of the RP and the same has not been denied. 7.6 If the version of the RP is taken into tangible than why he has not su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the exact value of the Trade Mark and if valued, failed to submit the Valuation Report before the Hon'ble Tribunal. 8.2 Is right to use of Trade Mark for consideration of some payment is same as Transfer for consideration of money which means sale of the Trade Mark. 8.3 Is entering into the partnership means having any ulterior motive. 8.4 RP has made false allegation and thus failed to provide any proof or content where it is mentioned that the Trade Mark of Concept Eduventure has been sold to the Respondent No. 1. Only right to use Trade Mark given against education of 300 students for a year which was valued at around 4 crores along with Rupees Ten lakhs which is specifically mentioned in the Deed of Agreement dated 08.02.2019. 8.5 Thus the present application annulled under this Section and making the answering Respondent a party for false reason i.e. under value of Trade Mark, the burden of proof lies on the RP to prove the same before this Hon'ble Tribunal. 9. The Applicant RP thereafter has further submitted that: 9.1 What was the need for transfer of the right to use' of the trade mark barely a week after formation of partner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... partnership agreement dated 01/02/2019 between the CD and the Respondent no 1 whereby they agreed to carry on a business in the name of Potential and Concept Educations. Subsequently, there is a deed of Agreement dated 08/02/2019, a week after, in which the right to use of the above Trade Mark CONCEPT Education for 15 years is transferred in favour of the R1 for a mere ₹ 10 Lakhs (Rupees Ten Lakhs only) Furniture, fixtures and Electronics were also transferred in favour of R1. 10.2 Further, there is a Deed of Reconstitution of Partnership dated 19/09/2019 by which the CD is ousted and the spouse of the Respondent no 2 and 3 are inducted as partners 10.3 All the three Respondents have done all the above at their own will within the look back period of one year i.e. the Application filed under IBC was admitted on 26/02/2020 and all these agreements and transfer of right to use of the Trademark started taking place from 01/02/2019 and onward. 11. The submissions of the Respondent No. 3 that the RP has not followed the provision of the Code as well as Regulations and even after bared by limitation, the application has been filed by the RP without supporting any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. 17. In order to ensure the successful implementation of the Resolution Plan, We are of the considered view, taking into account the points no 10 to 16 mentioned above, the Prayer made by the Resolution Professional- the Applicant is hereby accepted. Hence, the agreements entered into between the CD and the Potential Coaching Institute Pvt. Ltd. dated 01.02.2019, 08.02.2019 and thereafter, if any, within the look back period stand terminated, consequently the Right to use of the trade mark CONCEPT Educations is withdrawn with immediate effect and the same is now vested in the Corporate Debtor in accordance with Section 48(a) of the Code. The Trademark is only for the CD and the Potential Coaching Institute Pvt. Ltd. shall not use the trademark henceforth. 18. There is no liability or any obligations from either side in relation to the use of Trademark from today but it is made clear that the matters of non-cooperation of the Suspended Management, their agreements with the Potential Coaching Institute Pvt. Ltd. for use of Trademark for ₹ 10.00 lacs for fifteen years and subsequent withdrawal from the partnership shall be heard along with other IAs filed by the RP un ..... X X X X Extracts X X X X X X X X Extracts X X X X
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