2020 (4) TMI 516

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....Mr. Changhez Khan,Adv., Shantala S.,Adv. And Mr. Rameshwar Prasad Goyal, AOR ORDER 1. Heard learned counsel for the parties. 2. Applications for intervention are allowed. Application for impleadment is allowed to the extent of intervention. 3. The facts, in short, are that Debenture Trust Deed (for short 'DTD') was entered into between Respondent No.1 (Corporate Debtor)/Earthcon Infracon Private Limited and the appellant/Beacon Trusteeship Limited, the Respondent No.1 issued 3000 senior, secured, transferable, unlisted, unrated, redeemable, non-convertible debentures of face value of Rs. 1,00,000/- on a private placement basis against the deposit of Rs. 30 Crores. On 20.12.2017 and 24.12.2018, DTD was amended twice to raise addi....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....d manifold submissions that as per agreement it was necessary to give notice to the appellant before initiating the proceedings before the NCLT which was not given. The three invoices on the basis of which the proceedings have been initiated are vague and prima facie proceedings have been initiated in collusive manner by Respondent Nos. 1 and 2. Reliance has been placed on the provisions contained in Section 65 of the IBC and a decision of this Court in Embassy Property Development Pvt. Ltd. v. State of Karnataka and Others, (2019) SCC Online SC 1542 (C.A. No.9170/2019 etc. decided on 03.12.2019), in which this Court has observed as under:- "52. Even fraudulent tradings carried on by the Corporate Debtor during the insolvency resol....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....e rupees. (2) If, any person initiates voluntary liquidation proceedings with the intent to defraud any person, the adjudicating authority may impose upon such person a penalty which shall not be less than one lakh rupees but may extend to one crore rupees." 7. Considering the provision of Section 65 of the IBC, it is necessary for the Adjudicating Authority in case such an allegation is raised to go into the same. In case, such an objection is raised or application is filed before the Adjudicating Authority, obviously, it has to be dealt with in accordance with law. The plea of collusion could not have been raised for the first time in the appeal before the NCLAT or before this Court in this appeal. Thus, we relegate the appell....