TaxTMI 
TaxTMI 
2022 (9) TMI 1166
X X X X Extracts X X X X
X X X X Extracts X X X X
....1099/2019 (Filed by the 'Appellant' / 'Applicant' / 'Resolution Professional' under Section 66 (1) of the Insolvency & Bankruptcy Code, 2016) at Paragraph Nos.29 to 34 had observed the following:- "29. Thus, there seems to be a stark contrast in relation to Section 66(1) and 66 (2) of IBC, 2016. It is needless to say that even the scope of sub-section (1) and (2) of Section 66 of IBC, 2016 are different. As to the present case, the Applicant sought the Respondents to make contribution to the Corporate Debtor, under Section 66 (2) of IBC, 2016. 30. By keeping in mind the scope of sub-section (1) of Section 66 of IBC, 2016, this Tribunal is required to examine as to whether the transactions as alleged by the Applicant in the present Application against the Respondents would fall within the confine of 'Fraudulent Trading' that is to say that whether the business of the corporate debtor has been carried on with intent to defraud creditors of the corporate debtor or for any fraudulent purpose. In this context, it is significant to refer to the decision of the Supreme Court, in the matter of Anuj Jain IRP for Jaypee Inrfatech Limited - Vs - Axis Bank Limited Etc., In Ci....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of the Hon'ble Apex Court, it is to be noted that specific material fact in relation to the transaction which is sought to be challenged by the Resolution Professional is required to be pleaded in the Application. As to the present case, the Applicant sought to reverse the transactions purported to be done by the Respondents under Section 66 (1) of IBC, 2016. 32. From the averments and from the ingredients extracted supra, it is seen that the Applicant is required to prove the following; a. The person should knowingly carry on the business with the Corporate Debtor; b. The said person should have a dishonest intention to defraud the creditors; 33. The Applicant in the present case has miserably failed to prove the dishonest intention of the Respondents to defraud the creditors. Only allegations has been made by the Applicants in respect of the amount which is due and payable by the Respondents and no documentary proof has been filed in support of the same, to show that the business of the Corporate Debtor was carried out by the Respondents with an dishonest intention and to defraud the creditors. Under the said circumstances, the reason given by....
X X X X Extracts X X X X
X X X X Extracts X X X X
....fter, gave the 'misleading' and 'untenable' information. 7. The categorical stand of the 'Appellant' / 'Applicant' is that the 'conduct' of the then existing 'Directors' of the 'Corporate Debtor' on remitting a sum of Rs.70,82,13,056/- into the 'Bank Account' of the 1st Respondent, in connivance with it, is a 'Fraudulent Transaction', carried out to divert the 'Creditors' of the 'Corporate Debtor'. 8. The Learned Counsel for the 'Appellant' brings it to the 'Notice' of this 'Tribunal' that as per the 'Books' of the 'Corporate Debtor', the 1st Respondent had remitted a sum of Rs.206,90,45,531.50 paise into the 'Bank Accounts' of the 'Corporate Debtor', viz., 'Karur Vysya Bank' and 'HDFC Bank'. Besides this, a sum of Rs.70,82,13,056/- was remitted back from the 'Karur Vysya Bank' account of the 'Corporate Debtor' to the 'Current Account' of the 1st Respondent with YES Bank Ltd., bearing No.041985700000247 on various dates from April 2018 to June 2018. The Learned Counsel for the Appellant points out that the 'impugned order' is an erroneous and unacceptable one, in 'Law'. 9. The Learned Counsel for the 'Appellant' takes a stand that the Respondents are liable to contribute a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e following amounts, which run as under: - IN HDFC BANK ACCOUNT OF RPPL IN KVB BANK ACCOUNT OF RPPL Date Amount in Rs. Date Credit Amount in Rs. Cheque No. RTGS to Wind Construction 25/01/2018 170000000.00 27/04/2018 79953693.50 08/02/2018 40000000.00 27/04/2018 99809688.50 16/02/2018 195897938.50 30/04/2018 173 99866632 26/02/2018 339717712.50 05/04/2018 106643558.50 09/03/2018 181062820.50 05/05/2018 201 106526632 16/03/2018 283604898.50 19/05/2018 51768072.50 23/05/2018 306 99439896 23/05/2018 245 51750000 05/06/2018 352 350629896 1210283370.00 858762161.50 708213056 14. According to the 'Appellant' / 'Applicant' a total sum of Rs.206,90,45,531.50 Paise was brought into 'Bank Accounts' of the 'Corporate Debtor' i.e., 1) Karur Vysya Bank and 2) HDFC Bank, but a sum of Rs.70,82,13,056/- was ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cant' had filed IA(IBC)/489(CHE)/2021 in IBA/1099/2019 before the 'Adjudicating Authority' (National Company Law Tribunal, Division Bench - II, Chennai) praying for passing an order "(1) in directing the Respondents jointly and severally to contribute to the 'Assets' of the 'Corporate Debtor' by paying a sum of Rs.75.63 Lakh along with 18% interest from 05.06.2018 till the date of 'Realisation' in 'Full'. (2) to 'Declare' that the 'Applicant' has got an 'unpaid vendor's lien over the 'Assets' of the 1st Respondent supplied by the 'Corporate Debtor' for a sum of Rs.75.63 Crore along with 18% interest from 05.06.2018 till the date of 'Realisation' in 'Full'." 20. Before the 'Adjudicating Authority' (National Company Law Tribunal, Division Bench - II, Chennai), the 1st Respondent / M/s. Wind Construction Private Limited had filed a 'Reply' to IA(IBC)/489(CHE)/2021 in IBA/1099/2019, wherein at Paragraph '(iv)', it is mentioned as under:- "The Balance payment of the Project cost was to be paid after commissioning of all 33 Machines on permanent connectivity basis against submission of commissioning certificate and against submission of all applicable NOCs t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ating Authority' (National Company Law Tribunal, Division Bench - II, Chennai) in IA(IBC)/489(CHE)/2021 in IBA/1099/2019, that out of the consideration for the 'Wind Turbines' purchased by the 1st Respondent, the 1st Respondent had paid a sum of Rupees about INR 121 Crores to the HDFC Bank Account of the 'Appellant' / 'Applicant' and a sum of Rupees about INR 86 Crore was paid to the Karur Vysya Bank Account of the 'Appellant' / 'Applicant', aggregating to a sum of Rs.207 Crore was paid to the 'Appellant' / 'Applicant'. Moreover, the 1st Respondent has claimed the 'Liquidated Damage' from the 'Appellant' / 'Applicant', amounting to about INR 23 Crore, which was adjusted in the 'Receivables' of the 'Appellant' / 'Applicant'. Also, that a sum of INR 130 Crore was paid directly to the 'Vendors' of the 'Appellant' / 'Applicant' subsidiary RISPL, in relation to 33 'Wind Turbines' purchased by the 1st Respondent. In addition, a sum of INR11 lakh was paid by the 1st Respondent, on behalf of the 'Appellant' / 'Applicant,' for the 'right of way', directly to the respective 'land owners' and a sum of INR 130 Crore was paid directly by the 1st Respondent to the TDS 'Receivables' by the 'Appel....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... [(d) provides for the manner in which proceedings in respect of avoidance transactions, if any, under Chapter III or fraudulent or wrongful trading under Chapter VI of Part II of the Code, will be pursued after the approval of the resolution plan and the manner in which the proceeds, if any, from such proceedings shall be distributed. Provided that this clause shall not apply to any resolution plan that has been submitted to the Adjudicating Authority under sub-section (6) of section 30 on or before the date of commencement of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) (Second Amendment) Regulations, 2022.] (Inserted by Notification No.IBBI/2022-23/GN/REG084, dated 14th June, 2022 (w.e.f. 14-06-2022). 30. It is not in dispute that the 'Corporate Debtor Insolvency Resolution Process ('CIRP') had attained finality and that the 'Resolution Plan' became 'Functus Officio' and he cannot file / pursue any 'Petition' / 'Application' on behalf of the 'Company'. 31. The ingredients of Section 23 of the Insolvency & Bankruptcy Code, 2016 pertains to the 'Role' of the 'Resolution Professional' to conduct 'Corporate Inso....
X X X X Extracts X X X X
X X X X Extracts X X X X
....HE)/2021 in IBA/1099/2019 under Section 66 (1) of the Insolvency and Bankruptcy Code, 2016. In this connection, this 'Tribunal' significantly points out that in respect of an 'Application' (Filed under Section 66 of the Insolvency and Bankruptcy Code, 2016) 'Fraudulent Trading' / 'Wrongful Trading', by the 'Applicant' / 'Resolution Professional' is concerned, 'Tangible Materials' / 'Relevant Facts' are to be pleaded in an 'Unambiguous and Unequivocal Terms', by supplying the necessary details / facts as the case may be. 37. It transpires that the 'Appellant' / 'Applicant' in IA(IBC)/489(CHE)/2021 in IBA/1099/2019 that the 'Appellant' / 'Applicant' had prayed for issuance of 'Direction' to the Respondent 'jointly' and 'severally' to contribute to the 'Assets' of the 'Corporate Debtor', by paying a sum of Rs.75.63 Crore along with 18% interest from 05.06.2018, till the date of 'Realisation' in 'Full' and sought for a 'relief' of 'Declaration' that the 'Appellant' / 'Applicant' has got an 'unpaid vendor's Lien' over the 'Assets' of the 1st Respondent, supplied by the 'Corporate Debtor' for a sum of Rs.75.63 Crore along with 18% interest from 05.06.2018 till the date of 'Realisation....