TaxTMI 
TaxTMI 
2020 (2) TMI 1572
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....6, Rs. 30 lacs on 26.06.2017 and Rs. 10 lac on 31.03.2018. Over and above the amount mentioned above, another amount of Rs. 25 lac is shown as transferred to R1 on 15.12.2016, but whereas this entry of Rs. 25 lac is reflected in tally as reversed but not evidenced in the Bank Statements of the Corporate Debtor. The Applicant further submits that out of aforementioned Rs. 65 lac shown as paid to R1, Rs. 40 lac was shown as transferred on 26.6.2017 & 31.3.2018, which is within two years before commencement date of CIRP i.e. 02.05.2019. When the Applicant has not found any supportings to these transfers, on R3 being asked about these transfers, R3 has verbally stated that these amounts were in the nature of professional fee paid to R1 to organise a loan of Rs. 20 Crore for the business needs of the Corporate Debtor, but whereas, the Applicant says that he has not found any material from the books of the Debtor Company reflecting that a contract was executed in between R1 and the Corporate Debtor for providing such service to the Corporate Debtor by R1 and also not found any material reflecting that Rs. 20 Crore aforementioned fund for carrying business of the Corporate Debtor has come....
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....'s financial statement discloses nil income from the operations of R1, except income of Rs. 37.85 lac from other income. The Applicant considering the transactions in between the Corporate Debtor and R1 as fraudulent transactions, she has moved this application for a direction against Respondents jointly and severally to repay Rs. 65 lac to the Debtor Company as this money has evidently gone from the Corporate Debtor to R1. 6. As against these allegations, R1 & R2 and R3 separately filed their replies that R1 was incorporated on 12.01.2015 with designated partners of Mr. Deepak Parasuraman (R2) and Mrs. Chitra Athwani. According to them R1, on 12.10.2015, entered into a contract with the Corporate Debtor to facilitate securing long term and capital debt to the Corporate Debtor on an exclusive basis to undertake the transaction within a period of six months with a stipulation that R1 would ensure that the Corporate Debtor would get Rs. 20 Crore long term debt and Rs. 40 Crore towards working capital. For which the success fee payable to R1 would be @ 3% of the total debt, out of which a sum of Rs. 5 lac would be paid as advance so that it would be set off against expenses. In v....
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....spondents submit that there were four Directors in the Corporate Debtor Board, R2 is not related to any of these Directors, therefore, it is not right to say that R3 has acted on the instructions of R2. They say it is true that R2 and R3 are Directors of Udveka but the Director of the Corporate Debtor and the partner of R1 remaining directors in some other company will not fall u/s. 5(24A) (h) of the Code because R3 has never acted as per the directions of R2. For they are not being related to each other, the allegation that R3 acted as per the instructions of R2 will not lie. With these submissions, the Respondents counsel submits that these transactions have to be considered as the transactions occurred during the ordinary course of business as stated u/s. 43(3)(a) of the Code. 8. On hearing the submissions of either side and by looking at the documents filed by both the parties, it is evident that money was transferred from the Corporate Debtor to R1. From the records of the corporate debtor there is no material to say that these monies were transferred as commission towards the consultancy services rendered by R1. There are no supporting entries from the books of the Corporate....
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.... 10. On the bottom of every page of this letter, surprisingly it is shown as signed by R3 on behalf of the Corporate Debtor. But in the body portion, it has been stated that an application was given by the Corporate Debtor over which SREI was pleased to offer a loan of Rs. 3.60 Crore. Had it been so, it should have been signed by SREI. But in this case, it was shown as signed by R3 on behalf of the Corporate Debtor. To our understanding it is nowhere shown as this offer letter was processed upon the facilitation provided by R1. Moreover, it is only an offer letter, no letter has been placed showing that this loan was granted. If the story set out by these Respondents is assumed as correct, why these Respondents have not reflected the same in the records of the Corporate Debtor and why these Respondents did not reply to the e-mails sent by the Resolution Professional. 11. As to the Purchase Order placed by Regen, had this money been paid by the Regen, those details should have been given. No such details have been given reflecting goods were sold and money was received by the Corporate Debtor and out of which, if commission was released to R1, there should have been invoices and re....
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....ved that transaction is within look back period and it has not taken place in ordinary course of business, then it is obvious that it will come within the purview of Section 43 of the Code. Then next point is to ascertain as to whether it is within one year look back period or beyond one year look back period and falling in the second year look back period, if it is falling within second year look back period, then it shall fall within Section 5(24) or (24A) of the Code. 16. In this case, no material is there to prove that R1 acted as commission agent to facilitate the Corporate Debtor to secure loan from SREI and also to secure Purchase Order from Regen. As long as this aspect is not proved, it cannot be said that, the relation in between the Corporate Debtor and R1 is debtor and creditor relationship. If any money has been shown as siphoned from the Corporate Debtor Accounts, as to those monies, if the Corporate Debtor failed to show it as payment to a Creditor, then such payment has to be considered as a fraudulent transaction falling within the ambit of Section 66 of the Code. 17. As to R1 Partnership Firm, it was hardly setup nine months before the Corporate Debtor entered i....