TMI Blog2022 (6) TMI 499X X X X Extracts X X X X X X X X Extracts X X X X ..... ager - seeking release of John Deere spare parts imported by the 1st Applicant. Whether the reliefs sought for in this application can be granted by this Tribunal? - HELD THAT:- This application has been filed by (i) Cornier Private Limited (ii) Cornier Power Systems Pvt. Ltd and (iii) M/s Whispower Sales Services Pvt.Limited. According to the constitution of applicants herein and the Corporate Debtor, it shows that in the Corporate Debtor Mr.Thomas George and Asha Mary Thomas have 49% shareholding, in 3rd applicant Whispower Generator Sales and Services (P) Ltd. the above persons have 100% shareholding, in 2nd applicant Cornier Power Systems Pvt. Ltd the above persons have 100% shareholding and in 1st applicant cornier Private Limited, the son of Mr.Thomas George and Daughter in Law of Thomas George has 100% shareholding. From the above, it is clear that they are related parties to the Corporate Debtor. This application has been filed by the applicants in order to flout the directions contained the above order. Since the Corporate Debtor s suspended Directors Mr. Thomas George and Mrs. Asha Mary Tomas are having 100% shares in the 2nd and 3rd applicant companies and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y deem fit; c) Release the generators and motors that belong to Bharat Sanchar Nigam Limited (BSNL), Fertilizers and Chemicals Travancore Ltd (FACT) and the Kerala Minerals and Metals Ltd. (KMML) who are the customers of the 2nd applicant which were brought to the factory for carrying out certain repairs, subject to submission of Form G and such other condition as this Tribunal may deem fit; d) Release the Mobile Phone of the General Manager of the 1st Applicant. e) Release the John Deere spare parts imported by the 1st Applicant. 2. The brief facts of the case are that applicants 1-3 are private limited companies operating their respective businesses from and out of a factory premise in Kalamassery which is alleged to be a property of M/s. Mathstraman Manufacturers and Traders Private Ltd. (Corporate Debtor). As per the order dated 20.11.2020 in IBA/04/KOB/2020 the Corporate Insolvency Resolution Process (CIRP) had been initiated against the Corporate Debtor pursuant to an Application filed by the Union Bank of India (Financial Creditor) under the provision of Section 7 of the l B Code, 2016 and the 1st Respondent was appointed as the Interim Resolution Professional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Process. 6. Thereafter, the Respondent filed another application- IA (IBC)/173/(KOB)/ 2021 under Section 66 of the Code. Since this Tribunal had already passed an order in IA No.38/KOB/2021, this Tribunal stated that no further orders are necessary in that application vide its order dated 07.01.2022. 7. The Applicants stated that in the light of the above, the 1st respondent took possession of the factory premises of the applicants which is alleged to be a property of the Corporate Debtor. The applicants submit the 1st respondent do not have a case that what lies inside of the factory belongs to the Corporate Debtor. Moreover, the order dated 09.07.2021 declares the Suspended Directors personally liable for the fraudulent transactions and further directs them to make good the losses caused to the Creditors. The said declaration in the above order by no stretch of imagination would entitle the 1st respondent to hold possession of goods and documents that either belong to the applicants or their customers, the applicants contended. 8. The applicants further stated that there are generators and motors that belong to Bharat Sanchar Nigam Limited (BSNL), Fertilizers and Chemi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of goods of another entity lying within the same premises which in fact belong to 3rd party entities, subject to certain conditions. Therefore, the applicants herein submitted that all that goods belonging to the applicants are liable to be released from the factory premises. Counter by the 1st Respondent 13. The 1st Respondent in his counter stated that the Order under Section 66 of the Insolvency and Bankruptcy Code, 2016 had become final and in the said application the 3rd applicant M/s Whispower Sales and Services Pvt. Ltd was a respondent and the said Order indubitably binds the 3rd applicant as well. 14. It is further stated that as per the rules, the properties of 3rd parties shall not be held by the Liquidator and the same shall be released on submission of form No. G by such 3rd party owner as per Regulation 20 of IBBI (Liquidator Process) Regulations, 2016 and after due verification and separation from liquidation estate thereof by the Liquidator, mentioned in the provisions of the Code particularly, in Section 36(3)(a) read with Regulations 20, 23 and 24 of IBBI (Liquidator Process) Regulations, 2016. 15. The learned counsel for the 1st Respondent submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion estate, its separation from liquidation estate shall be possible only by proper submission of form No. G by such a Third Party as per Regulations 20, 23 and 24 of IBBI (Liquidation Process) Regulations, 2016. 19. It is stated that the entire proceedings of the application herein by the applicants 1 to 3 are vitiated by fraud which is conspicuous from the statements made herein particularly on the basis that all the petitioners are held by the same persons out of which 3rd petitioner had been a party to the proceedings all throughout including in Section 66 proceedings culminated in the order directing taking over of the assets of the Corporate Debtor. Written Objection Filed By The Authorized Officer Of The Financial Creditor 20. As permitted by this Tribunal, on a request made by the learned counsel for the 2nd respondent, an objection has been filed by the 2nd Respondent, in which it is stated that as per the proceedings dated 29.04.2022 of this Tribunal, Financial Creditor bank was permitted to file objections. The contention of the 2nd Respondent is that the applicant Companies are related parties to the Corporate Debtor as defined under Section 5 (24) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e act with an intent to defraud the Financial Creditor and therefore they are liable to make such contribution to the assets of the Corporate Debtor. 25. We have heard the learned counsel for the petitioners Shri Akhil Suresh ad learned counsel for the respondents Shri P.Satheesan and Shri Ajay Kumar, Advocates and gone through the pleadings placed on record. 26. The only question to be considered in this application is whether the reliefs sought for in this application can be granted by this Tribunal. In order to consider the above, we have to first see who has filed this application. This application has been filed by (i) Cornier Private Limited (ii) Cornier Power Systems Pvt. Ltd and (iii) M/s Whispower Sales Services Pvt.Limited. According to the constitution of applicants herein and the Corporate Debtor, it shows that in the Corporate Debtor Mr.Thomas George and Asha Mary Thomas have 49% shareholding, in 3rd applicant Whispower Generator Sales and Services (P) Ltd. the above persons have 100% shareholding, in 2nd applicant Cornier Power Systems Pvt. Ltd the above persons have 100% shareholding and in 1st applicant cornier Private Limited, the son of Mr.Thomas George an ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
