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TMI Blog2022 (2) TMI 1304X X X X Extracts X X X X X X X X Extracts X X X X ..... ropriation, unauthorized and illegal use of the funds advanced by the corporate debtor has made. b) Direct the respondents to make payment of Rs. 50,00,000/- (Rupees Fifty Lakhs Only) along with interest @ 18% from the date of default payment of the corporate Debtor. c) Any other order which this Tribunal may deem fit and proper in the light of justice. 2. Originally, an application bearing No. C.P. (IB) No. 114/ND/2018 under Section 9 was filed by M/s. SRS Ltd., (the operational creditor) against M/s. Saubhagya Ornaments Private Limited (the corporate Debtor), the same was admitted vide order dated 13.03.2019 wherein Ms. Shalukhanna was appointed as an IRP, who was confirmed as RP in its 1st COC meeting dated 29.04.2019. 3. The applicant states that upon perusal of records and financial statements of corporate debtor during the ongoing CIRP, it was found that an amount of Rs. 50 lakhs only was outstanding and overdue for payment from the Respondent No. 1 Company to the Corporate Debtor on account of advances extended by the corporate debtor. The copy of ledger A/C of the Respondent No. 1 Company maintained in the books of corporate debtor has been annexed. Accordingly, the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also said that such transactions are regularly done by them and it will be taken care off..." However, in terms of the said email, the applicant submits that the defence of Respondent No. 3 does not hold valid and is out rightly denied since Mr. Anil Jindal is neither the Director nor the shareholder of Corporate Debtor. M/s. SRS Ltd. Further, M/s. SRS Ltd. and the Corporate Debtor M/s. Saubhagya Ornaments Pvt. Ltd. are both separate entities. 7. The applicant submits that as per records Rs. 50,00,000/- have been shown as outstanding in the Books of Accounts & Audited Financial Statements of the Corporate Debtor for the FY 2015-16 (last updated till FY 2016-17), stating that the claim of corporate Debtor was reverted by Respondent No. 3. Thereafter inspite of several communications, repeated reminders and clarifications the Respondent failed to make payments of the amount due. Hence the applicant also sent a legal notice dated 25.11.2019 to all the Respondents. However, no payment was ever made by the respondent. Moreover, the in terms of the above facts the malafide intention of the respondents of withholding the due amount and escaping rightful liability of making the payments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent No. 1 to be adjusted against the sale consideration of the aforesaid shares transferred by the Respondent No. 1 in favour of the operational creditor. Hence it is categorically denied that "any advance" was ever given by the corporate debtor to Respondent No. 1 f) The applicant has misrepresented the facts and created a false and fabricated claim, which is also barred by limitation and is merely raised against the respondent No. 1 to harass the director with unwarranted litigation. Accordingly, the respondent prays that the present application be rejected. 10. The applicant filed rejoinder reiterating the averments made in the application, denying the contentions of the respondent No. 1 to the present application and stated the following: a) That the advance given by corporate debtor to the respondent No. 1 had no connection with the transaction between SRS limited and the Respondent No. 1, in order to clarify the same, the applicant had vide email dated 22.10.2019 requested the respondent No. 3 to provide all documents executed between the parties. Pursuant to which the respondent No. 3 provided the share purchase agreement dated 10.03.2016 and as per the share purcha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to make a formal application under Section 5 of the Limitation Act, 1963, in order to enable the Court or Tribunal to weigh the sufficiency of the cause for the inability of the appellant/applicant to approach the Court/Tribunal within the time prescribed by limitation, there is no bar to exercise by the Court/Tribunal of its discretion to condone delay, in the absence of a formal application." Hence it is the contention of the applicant that the respondents have misappropriated the funds and must be directed to refund the amount of Rs. 50,00,000/- along with interest so that funds can be brought back to accounts of the corporate debtor. 12. We have heard the submissions made and considered the documents on records. As per the ledger accounts of Corporate Debtor, a sum of Rs. 50 Lakhs is reflected as outstanding and payable by Fuse Base Eltoro Pvt. Ltd. However, it is the contention of the respondent No. 1 in terms of clause 2 of the purchase agreement, an amount of Rs. 50 Lakh was to be paid as sale consideration and as it has been already admitted, the corporate debtor owes a certain sum of money to the operational creditor, therefore, upon instructions from and after interna ..... X X X X Extracts X X X X X X X X Extracts X X X X
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