TaxTMI 
TaxTMI 
2020 (11) TMI 626
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....Mr. Brijinder Singh and Mr. Brijinder Singh both Ex-Directors of M/s.Theme Export Pvt. Ltd., have filed this Appeal under Section 61 read with Section 33(2) of the Insolvency and Bankruptcy Code, 2016 (in short 'I&B Code, 2016') against the Impugned order dated 29.07.2020 passed by the Adjudicating Authority ('National Company Law Tribunal, New Delhi') in CA.121/ND/2019 in Company Petition No.(IB) 323(ND)/2019. The Adjudicating Authority has allowed the Petition and ordered the liquidation of the Corporate Debtor - and appointed 'Liquidator' Mr.Vikram Bajaj, Ex- Interim Resolution Professional (for short IRP) of the same company having registration No.IBBI/IPA-002/IP-N-00003/2016-17/10003. 2. The Adjudication Authority has passed the liq....
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.... back the money belonging to the corporate debtor etc. 4. The Appellants submission reflects the following issues:- a. The Respondent - Ms. Nandani Singh, a Director of Corporate Debtor (CD) has committed cheating and fraud and has diverted/syphoned off money elsewhere belonging to M/s. Theme Export Pvt. Ltd, Corporate Debtor and she has opened foreign bank accounts in the name of her daughters Ms. Nitya Vaishnavi Singh and Ms. Vanya Vaishnavi Singh in HSBC Bank and National Westminster bank, London United Kingdom. Material were supplied by the Corporate Debtor and some payments were collected in the daughters foreign bank account and have furnished certain emails and certain other invoices., commercial export invoices etc., sub....
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....ent apart from visiting Bank of Baroda and informing the Chief Manager Mr. Lalit Kumar Luthra about the theft etc., and demanded for stock statements and fixed assets register alongwith the list of machinery placed to the bank on 31.12.2018. As per the Appellant the official has not entertained them and asked to refrain from dealing such issues. The IRP and the Director- Mrs. Nanadani Singh Corporate Debtor visited Okhla Plant and it was observed that the available plant and machinery was lying completely dismantled and difficult to verify so was the case with the accessories stock and fabric also. IRP has neither conducted any physical verification of Accessories stock nor fabric and machinery lying dismantled in the factory premise of Cor....
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....ate stage and hence the Appellants cannot challenge the issue of Oppression and Mismanagement under section 61(4) of the Code and hence the Application needs to be dismissed. 6. The Counsel of the Liquidator has also stated that the documents are being reviewed by the Forensic Auditor M/s. K.R.A and Company Chartered Accountants to certain transactions under section 43, 45 and 66 of I&B Code 2016 and an appropriate application shall be filed by the liquidator based on findings. It is also submitted that no infirmity in the impugned order dated 29.07.2020 passed by the Adjudicating Authority. He is stretching the issue of commercial wisdom of the Committee of Creditors (CoC) who decided with over 98% voting to liquidate the Company and ci....
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....e Appeal paper book, it is stated as follows: "The IRP briefed the CoC members that the CoC in its last meeting decided that measures for revival of operations of TEPL may be discussed in the next CoC meeting. The representative of the BOB submitted that during the joint visit it was revealed by Ms. Nandini Singh that significant plant & machinery was shifted to NOIDA unit and since sold/adjusted against lease rentals, details of which have neither been provided to the Bank nor to the IRP. 'Further Ms. Nandani Singh had informed the available plant and machinery is also lying in completely dismantled form thus difficult to verify. Further the company was not carrying any stock and the directors have not provided any updated financi....
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....ra 33 & 42) and in the case of CoC of Essar Steel Vs. Satish Kumar Gupta and ors. Civil Appeal No. 8766 -67 of 2019 (para 31). These citation confirms that commercial wisdom of the CoC cannot be looked into by either Adjudicating Authority or Appellate Authority. 9. Section 61 I&B Code, which reads as under: "61. (1) Notwithstanding anything to the contrary contained under the Companies Act 2013, any person aggrieved by the order of the Adjudicating Authority under this part may prefer an appeal to the National Company Law Appellate Tribunal. (2) Every appeal under sub-section (1) shall be filed within thirty days before the National Company Law Appellate Tribunal: Provided that the National Company Law Appellate Tribun....