2020 (9) TMI 745

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....0.2019. The Corporate Insolvency Resolution Process (CIRP) in this present case had commenced on 17.09.2019. 2. The Applicant being the Resolution Professional took over the Corporate Debtor company subsequent to the Admission of the Petition vide Order dated 17.09.2019. Submissions made by the Applicant: 3. The Resolution Professional mentions that the Respondent Nos. 1 and 2, who are members of the suspended board of directors of the Corporate Debtor, opened bank account with Samruddhi Co-operative Bank Ltd., Dharampeth, Nagpur on 19.07.2019, i.e., during the period when the case was being heard at NCLT for a decision regarding Admission of the matter u/s 9 of the Petition. Further, between the period commencing from 20.09.2019 to 15.10.2019, i.e., during the currency of CIRP, an amount of Rs. 2,42,54,481/- was transferred and withdrawn in account of the said Bank in violation of section 14 of the IBC. The Applicant learned about the existence of the said bank account only in the last week of May, 2020 while perusing the accounts of the Corporate Debtor. The Applicant thereafter issued letter dated 03.06.2020 to the said bank seeking further details in the matter. The re....

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.... that Respondent Nos. 1 and 2 were aware of the imposition of the "Moratorium". The Applicant further mentions that Respondent No. 3 is the main beneficiary of the said illegal and authorized transfer. The reliefs sought by the Applicant is as under:- (i) Direct the Respondents to deposit the sum of Rs. 2,42,45,000/- withdrawn unauthorizedly and illegally, despite the imposition of the Moratorium, in the Corporate Debtor's account viz. Oriental Bank of Commerce, Malgodown Road, Kingsway, Nagpur - 440001, Account No.01341132000324. (ii) Direct the Respondents No. 1 and 2 to deposit the sum of Rs. 9,121/- withdrawn unauthorizedly and illegally in the bank account of the Corporate Debtor's, i.e., Account No. 01341132000324. (iii) Pass directions under Section 66 (Fraudulent trading or wrongful trading), 67 (Proceedings under section 66), 68 (Punishment for concealment of property), 69 (Punishment for transactions defrauding creditors), 70 (Punishment for misconduct in course of corporate insolvency resolution process), 72 (Punishment for willful and material omissions from statements relating to affairs of corporate debtor) and 74 (Punishment for contraventi....

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.... intent to defraud the Corporate Debtor. He therefore does not come under the meaning of 'fraudulent or wrongful trading' as required under Section 66 of the Code. Findings: 14. The CP No. 2925/(IB)/2018 under Section 9 of the Insolvency & Bankruptcy Code, 2016 was filed by the Operational Creditor and finally on 17.09.2019, the Petition was "Admitted". The Corporate Debtor, looking at the progression of events during the hearing, had realized that commencement of CIRP was imminent. Therefore, the Respondents No.1 and 2 had connived and plotted in opening of a bank account on 19.07.2019, just before the commencement of the CIRP. The Respondents No. 1 and 2 never divulged the information about this bank account because they had planned for receipt and withdraw of money from this account during the CIRP period. This bench has looked into the days on which monies came into the account and days when it were withdrawn. The said table of transactions is extracted below: 15. It is very evident from the table mentioned above that Respondent No. 3 was coming to know in advance about exact amount and date of money received by the Corporate Debtor which enabled him to present a chequ....

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.... dates on which it was presented and the dates on which those amounts were received are the same. It has not gone unnoticed to the Bench that Respondent No. 3, though it claims to be in financial distress, has filed no claims with the Resolution Professional till date. However, a perusal of the records by Insolvency Resolution Professional shows that there are still substantial amounts of operational debt claim which is due to Respondent No. 3 in the capacity of Operational Creditor. The Bench has also taken note of the fact that the submissions made by Respondents No. 1 and 2 where they mentions that the Corporate Debtor, Respondent No. 3 and other debtors of Corporate Debtor were known to each other as they are all part of a "small business community". In the submissions, Respondents No. 1 and 2 also mentioned that Respondent No. 3 had helped the Corporate Debtor in selling its goods. It is very clear from the above that all the three Respondents, i.e., Respondents No. 1, 2 and 3 have together carried on illegal and fraudulent transaction to deprive the Corporate Debtor Company. The defenses offered by Respondent No. 3 are an afterthought and Respondent No. 3 has actively partici....