TaxTMI 
TaxTMI 
2021 (3) TMI 628
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..... 3. The Applicant/Resolution Professionalin the application filed by him has submitted as follows: i. In the first CoC meeting held on 03.07.2020, the CoC instructed Applicant /Resolution Professional to issue employment letter(s) to two (2) persons from suspended management having extended full cooperation in initial days of the Corporate Insolvency Resolution Process(CIRP) proceedings. Accordingly, Applicant /Resolution Professional issued employment to the Respondent No.2 & 3 on 23.07.2020. ii. In the reply dated 30.07.2020, the Respondent(s) had stated that Enforcement Directorate conducted search and Seizure in the office of the Corporate Debtor but failed to provide the Applicant /Resolution Professional with the Seizure memo or list of documents seized as stated. iii. The Enforcement Directorate, Lucknow through its email dated 02.09.2020 has refuted claims of the Suspended Management (Respondents herein) by further statingthat they didn't not conduct any raid in the office of the Corporate Debtor nor seized anything. iv. Further, the Suspended Management has withdrawn money on 23.03.2020 & 04.04.2020 mainly from the bank account of th....
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....nd absolute co-operation to the Applicant/Resolution Professional and obstructed him in carrying out his duties and functions as a Resolution Professional. 4) The Respondent No.1 has submitted his replyas follows: i. The Applicant/Resolution Professional has never issued any email requesting the Respondent No.1 to extendassistance and cooperation to him. ii. That in the emails dated 28.07.2020, 30.07.2020, 05.08.2020, 29.08.2020, 15.08.2020, 19.08.2020, 27.07.2020, 23.07.2020 used as evidence, not even single mail is addressed to the Respondent No.1 wherein the Applicant/Resolution Professional is seeking information and documents from the Respondents herein. iii. The Respondent No.1 claims that he was merely a Director on paper and was never involved in the functions and affairs of the Company even after requesting for the same to Respondent No.2 &3.The Respondent No.1 further submits that he was made as the signatory in the Current Account bearing no.020100195101 held with Respondent No.4 and acted upon the instructions of Respondent No.3 for carrying the said transaction in question. iv. The Respondent No.1 alleges that Respondent No.3 gave....
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....iv. Respondent No.2 has further made a statement clarifying that neither he had any knowledge of such transaction due to onset of restriction due to COVID-19 pandemic nor he had attempted to carry out same through other mediums. v. Respondent No.2 has corroborated that Section 66(1) of IBC 2016 clearly casts liability only on persons who were "knowingly parties" and therefore, he can't be made liable for the said transaction as he had no knowledge of the same and there is absolute absence of mens rea in his case. vi. The Respondent No.2 has clearly alleged and relied on the apparent admission of Respondent No.1 during thehearing held on 11.01.2021, wherein he submitted that the transaction carried out without signed cheques, which according to Respondent No.2 is against the banking regulations and Respondent No.4 is responsible for the same. vii. The Respondent No.2 has also submitted that vide letter 11.08.2020 Respondent No.4 Bank has sought refund of Rs. 44.90 Lakh from Suspended Directors including him, to which he had replied on 24.08.2020 stating in the same that he had no knowledge of the said transactions. viii. The Respondent No.2 has su....
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....hat the search and seizure happened in H-67 office. Further it was submitted that the Suspended Management of the company was not permitted to enter into its own office on 31.08.2019 by one, Dr. B.N. Tiwari and the same was reported via police complaint. xvi. Respondent No.2 has further submitted that even after the clarification from the office of Enforcement Directorate via letter dated 01.09.2020, the applicant has not taken steps in regards to getting access the documents from the said office at H-67 office. xvii. Respondent No.2 has stated that they have provided digital copies of all major available documents and has arranged for the preparation of audited financial records of the Corporate Debtor for F.Y. 2018-19 along with designated auditors to keep Corporate Debtor as a going concern. 6) The Respondent No.3 has submitted in his reply as follows: i. The Respondent No.3 has submitted in the reply that Respondent No.3 was brought in the Company of the Corporate Debtor as a professional CEO for the specific task of Sales/Marketing and Technical/Regulatory aspects of the Corporate Debtor. Respondent No.3 further submitted that he was directed not ....
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.... stated in his reply that since he was hospitalised after contracting COVID complication in second week of October, the said process of formal handover of assets belonging to Mumbai and Bengaluru to the Applicant/RP was completed by December 2020. xii. Respondent No.3 has further submitted that he is not in possession of the Mahindra Bolero vehicles; therefore, handover of the same from the end of Respondent No.3 doesn't arise. He has stated that the current management had never received the said vehicles from Mr.Sanjay Bhatti, Ex-Director of the Corporate Debtor and the Principal shareholder of the Company controlling its functions. The same fact was also raised at the time of admission of Section 7 Application and recorded in the Order dated 26.02.2020. xiii. Respondent No.3 has further submitted that four out of total eight vehicles, are in the custody of UP Police, for which the applicant has not taken possession till date. One Vehicle has been handed over to the RP by Respondent No.1. The rest of three vehicle are in possession of Mr. Sanjay Bhatti as alleged by the Respondent No.3. xiv. Respondent No.3 has relied on the Section 70 of the IBC 2016 an....
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....bmitted that the Applicant/RP had come to know about the order dated 26.02.2020 prior to 11.03.2020 but no efforts were made by him to inform the Respondent No.4 bank. Infact the email dated 20.03.2020 never came to the knowledge of the Respondent No.4bank as the letter dated 20.03.2020 was received by Respondent No.4 bank in later afternoon on 4th April 2020 only and on the very same day the statement of account of the company was also mailed to the Applicant/RP. On communication of instructions of the Applicant/RP in the late afternoon of 4th April 2020 the company account was also frozen with immediate effect. Due to outbreak of COVID-19 Pandemic and skeleton services were being provided by the Bank and other Govt. departments including postal services and as such the letter dated 20.03.2020 was received by the R4 Bank on 4th April, 2020 post lunch and the data/information as called for by the Applicant/RP was emailed through mail [email protected] which is being used with all financial institutions including RBI &Banks etc. iii. Respondent No.4 has further claimed that on receipt of the said email by the Applicant/RP no objections were ever raised by the Applicant/....
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....Shri.Mohd.ShyanArif and Shri.Vivek Singh and they had nominated Mr.Nirpinder Singh and Ms.Hannah Arora as authorized signatory to the Bank vide Board Resolution dated 01.03.2019.Shri Vivek Singh was authorized and nominated as sole signatory to the Bank account in terms of Board Resolution dated 22.08.2019 and in terms of the said Board Resolution the Banking operations of the Bank Account were allowed under the sole signatures of Shri Vivek Singh. iii. Respondent No.4 has submitted that the working officers of the Bank were never communicated about the orders dated 26.02.2020 passed by this Tribunal until 04.04.2020by Applicant/RP. iv. Respondent No.4Bank has further stated in its reply that the Applicant/RP has relied upon an email dated 20.03.2020 sent to the official email Id of the Respondent No.4 bank and the same is not in so much circulation nor being used with regard to the correspondences of the Bank and the control of the same is only with one officer namely Sudhir Kumar Mehra.Respondent No.4 Bank has further stated that the said officer stopped coming to the bank due to the COVID-19 pandemic and in fact he didn't inform the bank or its working officers....
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....P) through email on [email protected](email id) on 20.03.2020. The Learned Counsel for the Respondent No. 4 Bank has submitted that the particular email id on which the communication was sent by the Resolution Professional was being accessed/managed by the Bank's then Chief Executive Officer and/or General Manager who was not attending the bank duty due to imposition of the Lockdown. The Respondent No.4 Bank has also confirmed that they have terminated the services of the concerned officer. It is pertinent to note that Lockdown due to the COVID-19 pandemic was imposed w.e.f. 25.03.2020 but the said email had already been sent on 20.03.2020 by the Resolution Professional to the Respondent No.4 Bank. 2. From the documents produced on record and submissions made by the parties, this Bench is of the considered view that there is a clear case of negligence and lapse on the part of Respondent No.4 Bank in observing normal banking prudence in this case and the Bench hereby orders that Respondent No.4 Bank will immediately make good of Rs. 44,90,000/- (Rupees FortyFour Lakh Ninety Thousand only) withdrawn from the Bank Account of the Corporate Debtor by the persons who were ....