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TMI Blog2022 (10) TMI 746X X X X Extracts X X X X X X X X Extracts X X X X ..... / 'Applicant' under Section 60 (5) of the Insolvency & Bankruptcy Code, 2016) at 'Paragraph 29 to 34' had observed the following: - "29. Thus, there seems to be a stark contrast in relation to Section 66(1) and 66 (2) of IBC, 2016. It is needless to say that even the scope of sub-section (1) and (2) of Section 66 of IBC, 2016 are different. As to the present case, the Applicant sought the Respondents to make contribution to the Corporate Debtor, under Section 66 (2) of IBC, 2016. 30. By keeping in mind the scope of sub-section (1) of Section 66 of IBC, 2016, this Tribunal is required to examine as to whether the transactions as alleged by the Applicant in the present Application against the Respondents would fall within the confine of 'Fraudulent Trading' that is to say that whether the business of the corporate debtor has been carried on with intent to defraud creditors of the corporate debtor or for any fraudulent purpose. In this context, it is significant to refer to the decision of the Supreme Court, in the matter of Anuj Jain IRP for Jaypee Inrfatech Limited - Vs - Axis Bank Limited Etc., In Civil Appeal No.8512 - 8527 of 2019; 29.1. However, we are impelled to make one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transaction which is sought to be challenged by the Resolution Professional is required to be pleaded in the Application. As to the present case, the Applicant sought to reverse the transactions purported to be done by the Respondents under Section 66 (1) of IBC, 2016. 32. From the averments and from the ingredients extracted supra, it is seen that the Applicant is required to prove the following; a. The person should knowingly carry on the business with the Corporate Debtor; b. The said person should have a dishonest intention to defraud the creditors; 33. The Applicant in the present case has miserably failed to prove the dishonest intention of the Respondents to defraud the creditors. Only allegations has been made by the Applicants in respect of the amount which is due and payable by the Respondents and no documentary proof has been filed in support of the same, to show that the business of the Corporate Debtor was carried out by the Respondents with an dishonest intention and to defraud the creditors. Under the said circumstances, the reason given by the respondent appears to be plausible and cannot be brought under Section 66 (1) of IBC, 2016. 34. Hence for the afor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ea' of the 'Appellant' that it is the 'absolute owner' of '1 WEC', which is lying with the 'Corporate Debtor' for the purpose of 'delivering' the same to the 'Appellant'. Furthermore, '1 WEC' is not the 'Asset' of the 'Corporate Debtor', but, it is the 'Asset' of the 'Appellant'. Apart from that, in terms of Clause 5 of the 'Agreement', the 'Appellant' is entitled for 'LD" and the said sum is 'adjustable' in the 'balance claim amount'. 7. The Learned Counsel for the 'Appellant' points out that the 'Respondent' filed its 'Counter' in IA(IBC)/477(CHE)/2021 on 29.04.2022 and in that, has not stated about 'Status' of '1 WEC', as to whether it was included in the 'Assets' of the 'Corporate Debtor' or not. 8. The Learned Counsel for the 'Appellant' comes out with a 'Plea' that the 'Impugned Order', passed by the 'Adjudicating Authority' (National Company Law Tribunal, Division Bench - II, Chennai) in IA/1147/IB/2020 in IBA/1099/2019 dated 01.07.2022 is a 'non-speaking Order' and in fact, the 'Respondent' could not have included '1 WEC', while valuing the 'Assets' of the 'Corporate Debtor', since the same belongs to the 'Appellant'. 9. It is represented, on behalf of the 'Appellant', t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 's Decisions: - 16. The Learned Counsel for the Appellant adverts to the 'Order' of the Hon'ble High Court of Delhi dated 26.11.2020 in WP (C ) 8705/2019 and CM APPL. 36026/2019 one M/s. Venus Recruiters Private Limited Vs Union of India and Others wherein at 'Paragraph 77 to 80', it is observed as under:- "77. There is a START line and FINISH line for the Resolution process. Section 23 clearly stipulates that the role of the RP is to 'manage' the affairs of the Corporate Debtor 'during' the resolution process and NOT thereafter. In fact, until the enactment of the proviso to Section 23, which was introduced with effect from 28th December, 2019, the RP's mandate concluded with the CIRP. The proviso introduced, firstly in 2018 and thereafter in 2020, merely extended the mandate of the RP till the approval of the Resolution Plan under Section 31(1) or appointment of liquidator under Section 34. This itself makes it amply clear that the RP's authority is limited in nature and in any event, cannot extend beyond the order passed under Section 31. Thus, there is an outer limit for the functioning of the RP under the proviso to Section 23 (1). The continuation of a RP or filing of an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his 'Tribunal' has heard the Learned Counsel for the 'Appellant', at the stage of 'Admission' of the instant Comp. App. (CH) (Ins) No.361/2022. 18. As seen from the contents of IA/1147/IB/2020 in IBA/1099/2019 filed by the 'Appellant' / 'Applicant', it is quite evident that the 'Contract' dated 24.01.2018 was executed between the 'Appellant' / 'Applicant' and the 'Corporate Debtor', whereby and whereunder, the 'Corporate Debtor' undertook to develop a 49.5 MW Wind Power Project comprising of '33 Wind Energy Converters (WECs)'. 19. According to the 'Appellant' / 'Applicant', the 'Total Consideration' for '33 WECs' was Rs.267,30,00,000/-, coupled with the applicable 'GST'. It is the plea of the 'Appellant' that it had made 'Full Payment' for the 'Whole Project' and it has to recover Rs.37,60,27,895/- from the 'Corporate Debtor'. 20. The submission advanced on behalf of the 'Appellant' is that '32 WECs' were delivered out of '33 WECs' and '1 WEC' is pending to be handed over, on the part of the 'Corporate Debtor'. Even if '1 WEC' is not installed, the desired results could not be achieved, as a result of which, the 'Appellant' will suffer serious hardship and loss. Furthermore, pen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the 'Project' and as on date, the 'Appellant' had failed to pay a sum of Rs.75.63 Crore and, in reality, the 'Respondent' has a right to recover the same with 18% interest from the 'Date of Default', in terms of the 'Contract'. Hence, IA/1147/IB/2020 in IBA/1099/2019 filed by the 'Applicant' / 'Appellant' is not maintainable in 'Law'. 25. It cannot be gainsaid that Section 23 of the Insolvency & Bankruptcy Code, 2016, provides for the 'Role of the Resolution Professional', to conduct the 'Corporate Insolvency Resolution Process' (CIRP), in managing the affairs of the 'Corporate Debtor', during the 'Resolution Period', and not at a later point of time. No wonder, the ingredients of Section 60 (5) of the Insolvency & Bankruptcy Code, 2016, is not all pervasive Section, showering upon 'Jurisdiction' to an 'Appellate Authority' to decide any question / issue concerned the 'Corporate Debtor'. 26. As far as the present Case is concerned, the 'Resolution Plan' was approved by the 'Adjudicating Authority' (National Company Law Tribunal, Division Bench - II, Chennai) on 01.02.2022. Taking note of the fact that the 'Respondent' / 'Resolution Professional' before the 'Adjudicating Autho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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