TaxTMI 
TaxTMI 
2019 (6) TMI 134
X X X X Extracts X X X X
X X X X Extracts X X X X
....Mr. Pawan Sharma and Ms. Arpita Yadav, Advocates for R-1. , Mr. Navneet Gupta and Mr. Bharat Monga, Advocates. JUDGMENT The Resolution Professional of 'M/s Shivkala Developers Pvt. Ltd.' (Corporate Debtor) filed three applications under Section 45, 49, 50(5) and 66 r/w Section 25(2) of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as 'I&B Code') for setting aside the transaction entered into by the Corporate Debtor on the ground of being preferential transfer carried out with a view to defraud the creditors. The Adjudicating Authority (National Company Law Tribunal), New Delhi Bench rejected all the three applications being CA No. 293/2018, 294/2018 and 295/2018 by impugned order dated 3rd October, 2018 giving rise....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he year 2009-10. 6. In CA No. 293/2018, it was alleged that the transactions were entered into by the Promoters and Directors of the Corporate Debtor, effecting a sale by an agreement executed on 9th April, 2010 in respect of ground floor and upper ground floor measuring a total area of 14,771 sq. ft. in the Commercial Complex, Fortune Smile, developed in Sector 63 Noida, on the allegations of being a wrongful transaction within the meaning of Section 66 of the Code. 7. In another CA. No. 294/2018, it was alleged that similar transaction was made, as made above related to an agreement-cum-allotment dated 8th May, 2018 in respect of floor space admeasuring 7385 sq. ft. on the fifth floor of the same Commercial Complex. 8. In CA No. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nce with section 53. (3) For the purposes of sub-section (2), a preference shall not include the following transfers- (a) transfer made in the ordinary course of the business or financial affairs of the corporate debtor or the transferee; (b) any transfer creating a security interest in property acquired by the corporate debtor to the extent that- (i) such security interest secures new value and was given at the time of or after the signing of a security agreement that contains a description of such property as security interest and was used by corporate debtor to acquire such property; and (ii) such transfer was registered with an information utility on or before thirty days after the corp....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eaded, we hold that the Resolution Professional failed to make out a case under Section 43 and transfer in question having made in ordinary course of business, the Corporate Debtor being a developer of real estate on the land allotted by Noida Authority for development of Commercial Complex, the application under Section 43 has been rightly rejected. 11. At this stage it is desirable to state that the Respondents have not been termed to be a related party and preference has been given during the period of two years preceding the insolvency commencement date. The insolvency proceeding has been initiated against the Corporate Debtor on 12th February, 2018 and all the transactions were made in between the year 2009-10. 12. Section 45 dea....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he liquidator or the resolution professional, as the case may be, shall demonstrate that- (i) such transaction was made with any person within the period of one year preceding the insolvency commencement date; or (ii) such transaction was made with a related party within the period of two years preceding the insolvency commencement date. (2) The Adjudicating Authority may require an independent expert to assess evidence relating to the value of the transactions mentioned in this section." 14. We have noticed that the Respondents are not a related party nor the transactions were made with any person during one year preceding the insolvency commencement date and in fact were made about 8-9 years back, the a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....l trading' and reads as follows:- "66. Fraudulent trading or wrongful trading.- (1) If during the corporate insolvency resolution process or a liquidation process, it is found that any business of the corporate debtor has been carried on with intent to defraud creditors of the corporate debtor or for any fraudulent purpose, the Adjudicating Authority may on the application of the resolution professional pass an order that any persons who were knowingly parties to the carrying on of the business in such manner shall be liable to make such contributions to the assets of the corporate debtor as it may deem fit. (2) On an application made by a resolution professional during the corporate insolvency resolution process, the Adju....