TaxTMI 
TaxTMI 
2022 (9) TMI 274
X X X X Extracts X X X X
X X X X Extracts X X X X
....hreesha Merla] Member (Technical) For the Appellant : Mr. Prithu Primal, Mr. Jaitegan Singh Khurana and Ms. Manpreet Kaur, Advocates For the Respondent : Mr. Pradhuman Gohil, Ms. Ranu Purohit, Mr. Vishnu Kumar and Sahithya A. Krishna, Advocates for R-2 & R-3. For the Appellant : Mr. Prithu Primal, Mr. Jaitegan Singh Khurana and Ms. Manpreet Kaur, Advocates. For the Respondent : Ms. Bhavana Duhoon, Advocate for R-1. Mr. Pradhuman Gohil, Ms. Ranu Purohit, Mr. Vishnu Kumar and Sahithya A. Krishna, Advocates for R-2 & R-3. For the Appellant : Mr. Prithu Primal, Mr. Jaitegan Singh Khurana and Ms. Manpreet Kaur, Advocates. For the Respondent : Ms. Bhavana Duhoon, Advocates for R-1. Mr. Pradhuman Gohil, Ms. Ranu Purohit, Mr. Vishnu Kumar and Sahithya A. Krishna, Advocates for R-2 & R-3. For the Appellant : Mr. Prithu Primal, Mr. Jaitegan Singh Khurana and Ms. Manpreet Kaur, Advocates For the Respondent : Ms. Bhavana Duhoon, Advocate for R-1. Mr. Pradhuman Gohil, Ms. Ranu Purohit, Mr. Vishnu Kumar and Sahithya A. Krishna, Advocates for R-2 & R-3. JUDGEMENT [ Per ; Shreesha Merla , Member ( T ) ] 1. These Appeals have been preferred by the Liquidator of M/s. Oasis Tradelink Ltd./....
X X X X Extracts X X X X
X X X X Extracts X X X X
....6 read with relevant Regulation against such Corporate Debtor in prescribed form before IRP/RP/Liquidator in that case for consideration of its claim." 4. Learned Counsel for the Appellant submitted that CIRP commenced against the 'Corporate Debtor' vide Order dated 26.02.2019 and subsequently vide Order dated 04.12.2019, the 'Corporate Debtor' went into Liquidation and a Liquidator was appointed. The first Respondent/Sundry Debtor of the 'Corporate Debtor' owes the 'Corporate Debtor Company' a sum of Rs.4,25,90,475/- against goods supplied to them by the 'Corporate Debtor'. It is submitted that the recovery of the said amount would immensely aid the Creditors of the 'Corporate Debtor' and realizing the maximum value during Liquidation. It is the responsibility of the Appellant herein to realize and recover dues on behalf of the 'Corporate Debtor' as laid down under Regulation 39 of the Insolvency and Bankruptcy Board of India (Regulation Process) Regulations, 2016. 5. It is further submitted that the Statutory Audit of the accounts of the 'Corporate Debtor' reflects that an amount of Rs.4,25,90,475/- is due and pending to the 'Corporate Debtor'. Learned Counsel placed reliance ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....idator is required to recover the said amounts by way of filing an Application under Section 7 or 9 of the Code. Respondents 2 & 3 in their capacity of erstwhile Directors of the 'Corporate Debtor' have provided all the information available relating to the Sundry Debtors and have also given detailed reasons for the default of payment by them. Upon further enquiry of the Appellant/Liquidator, Respondents 2 & 3 vide email dated 21.03.2020 have stated the reasons for delay in providing documents relating to the Sundry Debtors as several documents were ceased/impounded by the VAT Department during the raids and also because of the Liquidation Process. 9. It is further submitted that vide email dated 17.12.2019, the Ledger Account of the Sundry Debtor together with the copies of invoices of the goods copy of Form No. 402 and acknowledgement of goods sent outside Gujarat were also sent. It is argued that there is no Debtor or Creditor relationship between the Appellant and the first Respondent and that the Appellant has initiated the present proceedings in the capacity of the Liquidator of the 'Corporate Debtor' against first Respondent for recovery of outstanding amounts. Assessment:....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ebtor' were accepted by the Sundry Debtor and were sold. There was a direction by this Tribunal to the Sundry Debtor to deposit the amount in a separate Escrow Account, as the Debtor has received and accepted the goods and not returned the same to the 'Corporate Debtor'. However, in the instant case, the second and third, erstwhile Directors of the 'Corporate Debtor Company' themselves said that there were substantial reasons for the Sundry Debtors not to have paid their dues. As the factual matrix of the present case is different from the facts of 'Devmata Exim Pvt. Ltd.', (Supra) the ratio of the said Judgement is not applicable to the facts of the attendant case. Further, it is the case of the Sundry Debtor in the other Appeals that the amounts were squared off and settled. At this juncture, we find it relevant to reproduce paras 40 and 41 of the Judgement of the Hon'ble Supreme Court in 'Embassy Property Development Private Limited', (Supra) wherein the Hon'ble Apex Court has discussed the scope of Section 60(5) of the Code and observed that a Resolution Professional cannot short-circuit any Judicial Proceedings by taking advantage of Section 60(5). For ready reference, the par....
X X X X Extracts X X X X
X X X X Extracts X X X X
....examined is whether the Adjudicating Authority was justified in dismissing the Applications preferred by the Liquidator as not maintainable. The Resolution Professional is required under Section 18 of the Code to take control and custody of the assets of the 'Corporate Debtor'. The amounts stated to be 'due and payable' to the 'Corporate Debtor' by other Sundry Debtors are required to be included in the Information Memorandum and when included, the person/entity purchasing the assets of the 'Corporate Debtor' would have knowledge of the value of the assets/Liquidation Value as stated in the Information Memorandum. The Hon'ble Supreme Court in 'Gujarat Urja Vikas Nigam Limited' Vs. 'Mr. Amit Gupta & Ors.', Civil Appeal No. 9241 of 2019, in paras 67 & 68 noted as follows: "67. The institutional framework under the IBC contemplated the establishment of a single forum to deal with matters of insolvency, which were distributed earlier across multiple fora. in the absence of a court exercising exclusive jurisdiction over matters relating to insolvency, the corporate debtor would have to file and/or defend multiple proceedings in different fora. These proceedings may cause undue delay i....