2022 (11) TMI 439 - Tri - Insolvency and Bankruptcy

Tribunal Grants Execution Application for Recovery of Fraudulent Loss in Liquidation Process

The Tribunal allowed the Execution Application under Section 424 (3) of the Companies Act, 2013, read with Rule 56 of the NCLT Rules, 2016, for recovery ... CIRP - Liquidation proeedings - Fraudulent acts committed by respondents causing loss to Corporate Debtor - Section 66 of IBC - HELD THAT:- The Applicant filed the petition under Companies Act, 2013, R/w Rule 56 of NCLT Rules, 2016, to execute the order passed under Sec.66, IBC. Time and again it is held that IBC is a self-contained code with objective to maximise value in a timely manner. When the Code provides certain mode for execution of orders it is unnecessary to proceed under the different Act. In fact, it is ultra vires the IBC to invoke the provisions of the Companies Act, in the absence of any specific provision in the Code or Rules permitting such invocation. This application has been filed under Section 424 (3) of Companies Act, 2013. The said Section is not an enabling section to execute order, but only a section require to refer the Tribunals order for execution to the concern territorial limit Civil Courts. But Section 231 IBC,2016 ousted the Civil Court’s jurisdiction in toto, hence this application cannot be proceeded under Section 424 (3) of the Companies Act,2013. The self–contained IBC in Sec.35(2) empowers the liquidator to take possession (custody) and control of all properties and actionable claims of the CD. It has been adjudicated that the Respondents indulged in fraudulent transactions and they are personally liable to pay the amount of Rs. 21.37 Crores/- - the CD has actionable claims upon the schedule mentioned properties belonging to the Respondents. Regulation 33 in Schedule I of the IBBI (Liquidation Process) Regulations, 2016, provide ways and means to sell the assets of the CD by the liquidator in public action and/or by Private sale. In accordance with the Companies Act, only the ROC is furnished with a statement describing the properties of a company. The public are alerted not to deal with those properties only when the order of CIRP or Liquidation furnished to the ROC is reflected in the public domain. However, the schedule mentioned properties are in the name of the 3rd Respondent - The schedule numbers mentioned properties in this application are hereby attached and the 3rd Respondent herein is hereby prohibited from transferring or charging them by sale, gift, or mortgage or otherwise, and that all persons be and that they are hereby prohibited from receiving the same by purchase, gift or otherwise. Application allowed. Issues:Execution Application under Section 424 (3) of Companies Act, 2013 R/w Rule 56 of NCLT Rules, 2016 for recovery of fraudulent loss during liquidation process.Analysis:1. Background and Liquidation Order: - The case involves the liquidation of M/s. Archana Motors Private Limited due to fraudulent acts by the erstwhile directors causing a loss of Rs.21.37 crores. - Liquidator filed an application under Sec.66, IBC, seeking payment from the Respondents, which was allowed, directing the payment to CD under Sec.53 of IBC, 2016.2. Execution Application and Objections: - Execution Application was filed to attach and sell immovable properties of the 3rd Respondent after failure to pay the amount. - Respondents raised technical objections on property descriptions and procedural aspects, which were deemed insignificant by the Adjudicating Authority.3. Legal Provisions and Jurisdiction: - Applicant invoked Companies Act, 2013 and Rule 56 of NCLT Rules for execution, but objections were raised on the applicability of IBC being a self-contained code. - Section 424 (3) of Companies Act, 2013 was discussed, highlighting the limitation to refer orders for execution to Civil Courts due to the ousting of Civil Court jurisdiction by Section 231 IBC, 2016.4. Interpretation of Rules and Directions: - Rule 56, NCLT Rules, 2016 was contested for its applicability, with reference to the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. - The Tribunal clarified the spirit behind its previous observations and emphasized the self-contained nature of IBC empowering the liquidator to recover amounts due.5. Attachment and Sale of Properties: - The Tribunal ordered the attachment of properties belonging to the 3rd Respondent to prevent alienation. - Directions were given for filing necessary forms, communication to Sub-registrar Offices, custody and control of properties, symbolic possession, and sale in accordance with regulations.6. Precautionary Measures and Enforcement: - To safeguard third-party interests, the Tribunal directed the liquidator to take necessary steps and utilize police aid if required for enforcement. - The order was issued with specific instructions for compliance, communication, and issuance of certified copies upon formalities completion.This detailed analysis of the judgment outlines the legal proceedings, objections raised, interpretation of relevant laws, and the Tribunal's directions regarding the execution application for recovery of fraudulent losses during the liquidation process.