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2021 (9) TMI 275
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....4, 31 and Section 74 of IBC for siphoning off proceeds of Corporate Debtor in contravention of Moratorium imposed by this Hon'ble Tribunal. g. Pass such other or further orders as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the matter and in the interest of justice." 2. The facts mentioned in the application in brief are as follows: i. That the Corporate Insolvency Resolution Process (CIRP) was initiated against the Corporate Debtor vide order dated 26.10.2017 and the Moratorium was imposed on the assets of Corporate Debtor. Resolution Plan for Corporate Debtor was approved on 02.04.2019. ii. That it is stated that post imposition of moratorium, the Interim Resolution Professional had paid certain amounts to the Respondents on 02.11.2017, 09.01.2018, 09.02.2018, 22.02.2018, 10.04.2018, 26.04.2018, 22.05.2018, and 30.06.2018 by Bank transfer, as advance for the supply of goods. iii. That it is contended that Corporate Debtor seeks Rs. 12,30,457/- from respondents; as despite receiving this amount, the respondents neither supplied the goods/components nor refunded the amount to the corporate debtor. ....
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....d because of which, the Respondents could not continue with proceedings under section 138 of the Negotiable Instruments Act, 1881 for the dishonored cheque. v. That it is further contended that in furtherance of the public announcement dated November 17, 2017 and as per the oral request made by the RP, the Respondents had submitted their claim dated January 18, 2018 amounting to Rs. 34,07,390/- to the IRP. vi. That it is further contended that the Respondents received a notice dated 10.10.2019 from the Corporate Debtor wherein, it is alleged that Rs. 12,30,457/- is outstanding in the books of account maintained by the Corporate Debtor. vii. That it is further contended that against the said notice dated 10.10.2019, the Respondents had sent reply dated 21.10.2019 claiming that Rs. 34,07,390 is due and payable by the Corporate Debtor. It is pertinent to mention that the said reply clearly specified that the amount as alleged by the Corporate Debtor is not payable as the Respondents had supplied goods to the Corporate Debtor and RP had made part payment against the invoices issued for the said supply of goods. viii. It is alleged that the applicants....
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....made in the application and reply filed by the respective parties. 7. We notice that during the pendency of application i.e. IA/3927/2020, filed under Rule 11 of NCLT Rules, 2016 read with Section 14, 31 & 74 of IBC, the applicant has also filed another application being IA/1356/2021, praying therein to consider IA/3927/2020 also under Section 60(5) of Insolvency & Bankruptcy Code, 2016. Therefore, we would like to dispose of both these applications i.e., IA/3927/2020 and IA/1356/2021 by this common order. 8. Ld. Counsel for the applicant contented all the facts that are mentioned in the application. 9. It is further contended by the Applicants' Counsel that in this matter, the Corporate Insolvency Resolution Process (hereinafter referred to as 'CIRP') was initiated on 26.10.2017 against the Corporate Debtor and during the moratorium period, the Interim Resolution Professional (IRP) had made payments to the respondents on the following dates i.e., 02.11.2017, 10.04.2018, 26.04.2018, 22.05.2018 and 30.06.2018 for the supply of the goods/components. 10. He further contended that the Resolution Plan was approved by the Adjudicating Authority on 02.04.2019 and t....
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.... the respondents had started the supply of the material prior to the approval of Resolution Plan by the Committee of Creditors (hereinafter referred to as 'CoC') Therefore, the Resolution Applicant must be aware of the fact that in order to keep the Corporate Debtor a going concern, on the request of RP, the respondents had been supplying the material. 22. Before entering into the merit of the prayers of the applicants, first, we would like to consider whether the present application is maintainable under Rule 11 of the NCLT Rules, 2016 or under Section 60(5) of IBC, 2016, which is subsequently added by filing IA/1356/2021. 23. So far as the Section 60(5) of IBC is concerned, at this juncture, we would like to examine the said provision to consider whether the prayers of the applicants come within the purview of Section 60(5) of IBC, 2016 or not? 24. The relevant provision of Section 60(5) of IBC, 2016 is quoted below: IBC Section 60-Adjudicating Authority for corporate persons. 1.............. 2.............. 3.............. 4.............. 5. Notwithstanding anything to the contrary contained in any other law ....
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....d, the Resolution Plan has already been approved by the Adjudicating Authority on 02.04.2019. Therefore, no insolvency proceeding is pending before the Adjudicating Authority. 31. Under such circumstances, in our considered view, the application filed by the applicants under Section 60(5) of IBC, 2016 is not maintainable under the law. 32. So far as the application maintainable under Rule 11 of NCLT Rules, 2016 is concerned, in our considered view, during the pendency of any matter before the Tribunal, when there is no specific provision under the Act/Code is given only then the Tribunal may pass order by exercise of its power under Rule 11 of the National Company Law Tribunal Rules to deal with such situation. But herein the case in hand, no such matter is pending after the approval of Resolution Plan by the Adjudicating Authority, therefore, in our considered view, a separate application to deal with a new issue cannot be entertained under Rule 11 of the NCLT Rules, 2016. Therefore, in our considered view, Rule 11 of NCLT Rules, 2016 is also not applicable in the case in hand. And the application filed by the applicants is also not maintainable under Rule 11 of NCLT Rules. ....
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....tect the assets of the corporate debtor, including the continued business operations of the corporate debtor. (2) For the purposes of sub-section (1), the resolution professional shall undertake the following actions, namely:- (a) take immediate custody and control of all the assets of the corporate debtor, including the business records of the corporate debtor; (b) represent and act on behalf of the corporate debtor with third parties, exercise rights for the benefit of the corporate debtor in judicial, quasi-judicial or arbitration proceedings; (c) raise interim finances subject to the approval of the committee of creditors under section 28; (d) appoint accountants, legal or other professionals in the manner as specified by Board; (e) maintain an updated list of claims; (f) convene and attend all meetings of the committee of creditors; (g) prepare the information memorandum in accordance with section 29; (h) invite prospective resolution applicants, who fulfil such criteria as may be laid down by him with the approval of committee of creditors, having regard to the complexity and scale of operations ....
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....itors any instructions received by way of physical or electronic means, from the financial creditor he represents, for voting in accordance therewith, to insure that the appropriate voting in accordance therewith, to ensure that the appropriate voting instructions of the financial creditor he represents is correctly recorded by the interim resolution professional or resolution professional, as the case may be. Explanation.- For the purposes of this section, the "electronic means" shall be such as may be specified. 37. From the conjoint reading of the above Sections, we observe that as per Section 25(1) of IBC, it is the first and foremost duty of the IRP/RP to preserve and protect the assets of the corporate debtor, including the continued business operations of the corporate debtor. And in order to protect and preserve the assets of the corporate debtor, a separate provision has been made under Section 14(2) of IBC and Sub Section 2A of Section 14 is added w.e.f. 28.12.2019, as per which the supply of essential goods or services of the Corporate Debtor shall not be terminated, suspended or interrupted during the period of moratorium. Even before the insertion of Sub Se....
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....IA/1356/2021: 46. In the light of the aforesaid order passed in the IA/3927/2020, the present application is liable to be dismissed. 47. Accordingly, the same is hereby Dismissed. ============= Document 1 S. No. T. Date Particulars 26/10/2017 Outstanding balance as on Insolvency Commencement Date 2. 02/11/2017 Amount received from cheque issued prior to Amount (Rs.) Balance (Rs.) -37,07,390 (3,00,000) 34,07,390 Insolvency Commencement Date 3. 05/01/2018 Amount received from (95,378) 33,12,012 RP 4. 09/01/2018 Goods sold to Corporate Debtor 2,72,509 35,84,521 5. 09/01/2018 Amount received from RP 6. 09/02/2018 Goods sold to Corporate Debtor (1,77,131) 34,07,390 3,75,476 37,82,866 7. 09/02/2018 Amount received from RP (10,00,000) 27,82,866 8. 22/02/2018 Amount received from (4,50,674) 23,32,192 RP 9. 23/02/2018 Goods sold to Corporate 1,82,999 25,15,191 Debtor 10. 24/02/2018 Goods sold to Corporate 4,09,078 29,24,269 Debtor 11 10/04/2018 Amount received from (3,25,000) 25,99,269 RP 1,82,881 27,82,150 12. 12/04/2018 Good....