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TMI Blog2023 (9) TMI 1026X X X X Extracts X X X X X X X X Extracts X X X X ..... 16 (in short "IBC") by the Appellant who is aggrieved by the order dated 27.4.2023 (in short "Impugned Order") in IA (IBC) 182/KOB/2022 in IBA No. 37/KOB/2020 passed by the Adjudicating Authority (NCLT, Kochi Bench). 2. Briefly, the facts of the case are that Corporate Insolvency Resolution Process("CIRP") was initiated vide order dated 6.10.1021 against the corporate debtor in a petition filed under section 7 of the IBC by BMW India Financial Services Private Limited and Sankar P. Paniker was appointed as the Interim Resolution Professional. Subsequently, Vibin Vincent was appointed as Resolution Professional vide order dated 17.1.2022, who at the time of filing of IA(IBC) 182/KOB/2022 was working as Liquidator of the corporate debtor. 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Impugned Order to the date of realization of the said amount. 5. We heard the arguments put forth by the Learned Counsels for rival parties and perused the record. 6. The Learned Counsel for Appellant has argued that the Appellant is an ex-Director of the corporate debtor and an amount of Rs.36,03,970.50 due to be paid to him by the corporate debtor as on 6.10.2019 and he withdrew certain amounts from the corporate debtor account since certain amount was due to him legitimately. He has further argued that a total amount of Rs.8,79,357 was withdrawn by him for taking care of various expenses in normal course of business. These amounts were withdrawn on various dates, which are given in the chart below:- No. Ledger Account Details/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these amounts are not in regard to any antecedent debt owed by the corporate debtor. 8. The Learned Counsel for the Appellant has further submitted that section 43 of the IBC is not attracted and therefore, no order under section 44 of the IBC could have been given. 9. We perused the IA 182/2022 filed by the Liquidator as also the reply dated 1.10.2022 thereon, submitted by the Appellant before the Adjudicating Authority. We note the following which is stated by the Appellant in his reply before the Adjudicating Authority, particularly paragraphs 12, 14 and 15: it is noticed:- "12. The Respondents submit that these transactions do not fall within the anvil of Section 43 of the Code as these amounts which have been transferred are not i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acted above that the Appellant has carefully used the word "antecedent debt", but avoided the mention of any 'liability' owed by the corporate debtor towards the Appellant. We further note that the Appellant has also not made it clear as to why the amounts which were transferred by the corporate debtor through State Bank of India which amount to Rs.7,81,352, were transferred to the Appellant. Furthermore, the Appellant's claim that he has transferred amounts totaling approximately Rs. 49 lakhs to the account of the corporate debtor and therefore, the question of Rs.7,81,352 being preferential transactions does not arise is not at all legally tenable. 11. It is useful to reproduce sub-section (20, (3) and (4) of section 43 of the IBC, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ves possession of such property: Provided that any transfer made in pursuance of the order of a court shall not, preclude such transfer to be deemed as giving of preference by the corporate debtor. Explanation. - For the purpose of sub-section (3) of this section, "new value" means money or its worth in goods, services, or new credit, or release by the transferee of property previously transferred to such transferee in a transaction that is neither void nor voidable by the liquidator or the resolution professional under this Code, including proceeds of such property, but does not include a financial debt or operational debt substituted for existing financial debt or operational debt. (4) A preference shall be deemed to be given at a r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , such transactions are clearly 'preferential transactions'. Further, the exception that is carved out in clause (a) of sub-section (3) of section 43 that if the transfer is made in the 'ordinary course of business' of the corporate debtor, such transactions would be considered outside the ambit of 'preferential transactions'. The Appellant in his reply before the Adjudicating Authority has not given any clarity or reason as to why such transactions were made and therefore, the benefit of this exception of the transactions having been made in the 'ordinary course of business' cannot be provided to the Appellant. 13. In the light of the detailed discussion in the preceding paragraphs, and in the background of the report of 'Forensic Audit' ..... X X X X Extracts X X X X X X X X Extracts X X X X
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