TMI Blog2022 (5) TMI 1480X X X X Extracts X X X X X X X X Extracts X X X X ..... nsolvency, or liquidation and such an act is punishable under Section 65 (1) of IBC 2016. Hence, before taking any action under Section 65(1) IBC 2016, we think it proper to issue a show cause notice, under Rule 59 of the National Company Law Tribunal Rules 2016, to M/s. Zoom Communications Pvt. Ltd. through its Directors and M/s. Par Excellence Real Estate Pvt. Ltd. through its Directors and to Mr. Gulshan Kumar Jhurani as to why the penalty as stipulated under Section 65(1) of IBC, 2016 shall not be imposed on them. Ld. Registrar NCLT is directed to issue the show cause notice under Section 65(1) of IBC 2016 read with Rule 59 of the National Company Law Tribunal Rules, 2016 by giving them fifteen days' time to explain and submit in writing as to why the penalty as stipulated under Section 65(1) of IBC, 2016 shall not be imposed on them. Application dismissed. - IB No. 616/ND/2020 - - - Dated:- 17-5-2022 - ABNI RANJAN KUMAR SINHA, MEMBER (J) AND L.N. GUPTA, MEMBER (T) For the Appellant : Nikhil Singhvi and Mohit Seth, Advs. For the Respondent : Illapakurti Navneeth Sharma, Adv. ORDER L.N. Gupta, Member (T) 1. Zoom Communication Private Limi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Corporate Debtor made part-payment towards the invoices to the tune of Rs. 20,00,000/- (Rupees Twenty Lacs Only) and deposited an amount of Rs. 1,00,000/- (Rupees One Lacs Only) towards TDS deducted on payment made to the Operational Creditor. However, the Corporate Debtor has failed to make the payment towards the balance amount of Rs. 36,25,000/- (Rupees Thirty Six Lacs Twenty Five Thousand Only). 5. The Corporate Debtor sought certain period of time from the Operational Creditor to make payments towards the pending amounts and the Operational Creditor agreed to the same because of their professional relationship but the Corporate Debtor failed to make the requisite payments. 6. That on 12.11.2019, an e-mail was received from Mr. Kuldeep Sharma, representative of Corporate Debtor for confirmation of accounts which showcased that the balance of Rs. 36,25,000/- (Rupees Thirty Six Lacs Twenty Five Thousand Only) was due from the corporate debtor to the Operational creditor. A copy of the e-mail along with the letter is attached herewith and marked as Annexure-B. 7. That a letter dated 15.11.2019 was issued by the Operational Creditor to the corporate debtor requesting th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice, the Corporate Debtor has, however, filed its reply to the present application and objected to the prayer of the Applicant mainly on the ground of Limitation. That the Corporate Debtor has further stated that there is no debt due and payable to the Operational Creditor. 8. That for the purpose of crossing the hurdle of Limitation, the Applicant has relied upon the Part-payment made against the invoice amount on 11.08.2016, Letter of Acknowledgement of debt dated 01.04.2017 and the Email dated 12.11.2019 of the Corporate Debtor received by the Applicant. 9. That further, the Applicant has filed one IA no. 2245/2020 to bring certain additional documents on record. That these documents were taken on record vide Order dated 17.08.2020 of this Bench. 10. That vide aforesaid IA, the Applicant has filed Balance Sheets of the Corporate Debtor for the Financial Years from 2015-16 to 2018-19 to demonstrate the acknowledgement of the debt made by the Corporate Debtor in the Balance Sheets. 11. That while examining the Balance Sheet of the Corporate Debtor for the year 2017-18 for the purpose of computing the Limitation, we came across the following disclosure made by the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is that both the Applicant Company, which has claimed the operational debt based on an invoice for a loan procured for the Corporate Debtor and the Corporate Debtor against whom the Applicant is seeking to initiate CIR Process were having common Director namely, Mr. Gulshan Kumar Jhurani (DIN: 00209894). By way of visiting the records at the MCA Website and on piercing the corporate veil, it is clear that not only both the Applicant Company as well as the Corporate Debtor were 'related party' due to common Directorship on the date of the invoice but also here is a case, where Director of the Corporate Debtor (in the capacity of Director of the Applicant Company) has procured a loan for his own Company and is charging procurement fee therefor. In view of the aforesaid finding, we are of the considered view that the aforesaid transaction, which had taken place between the two related Companies in the year 2015 is sham and the CIR Process cannot be initiated on the basis of such a sham transaction. 20. That we are conscious of the provision contained in Proviso to Section 21(2) of IBC, 2016, whereby no right of representation, participation or to vote has been granted to a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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