2023 (6) TMI 902

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....T) (CH) (Ins) No.162 of 2023 [condone delay in representing the material papers of the instant 'Appeal']. The reason assigned on behalf of the 'Petitioner'/'Appellant' is that there has occasioned delay of 89 days in representing the 'Appeal' Material Paper(s) because of the fact that the 'Petitioner'/'Appellant' and his related Counsel, being stationed in Kochi, Kerala, where informed of the order dated 24.12.2022 and 21.02.2023 only by 27.02.2023 and added further, because of the fact that the 'Petitioner'/'Appellant', aged 70 years was laid-up, due to severe fever and caused for over a week until 06.03.2023 and could not meet his Learned Counsel to make suitable arrangements, to file the 'Appeal' Papers by means of 'Representation' befo....

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....applicant to handover possession of four Apartments to the applicant can be allowed. In this connection, it is profitable to quote Section 43(2)(b) of the IBC, 2016 which is as under: "43.(1) Where the liquidator or the resolution professional, as the case may be, is of the opinion that the corporate debtor has at a relevant time given a preference in such transactions and in such manner as laid down in sub-section (2) to any persons as referred to in sub-section (4), he shall apply to the Adjudicating Authority for avoidance of preferential transactions and for, one or more of the orders referred to in (2) A corporate debtor shall be deemed to have given a preference, if - (a) there is a transfer of property or an interest t hereof o....

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....ibunal', should have seen that as regards the 'four Apartments', pertaining to which the subjects 'interlocutory Application' was preferred, the 'Corporate Debtor' had only contracted to construct the 'four Apartments' for and on behalf of the 'Appellant'/'Applicant' and that too, at the cost of the 'Appellant'/'Petitioner'/'Applicant', and in fact, the 'Appellant' had paid the cost, thereto, 'as consideration' agreed in terms of the Agreements thereof to the 'Corporate Debtor' etc. The Learned Counsel for the 'Appellant'/'Petitioner', advancing his arguments points out that the 'Corporate Debtor', has no legal rights or beneficial interest and that the 'Adjudicating Authority'/'Tribunal' should have seen that by grant of the Interlocu....

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....s as under: "43.(1) Where the liquidator or the resolution professional, as the case may be, is of the opinion that the corporate debtor has at a relevant time given a preference in such transactions and in such manner as laid down in sub-section (2) to any persons as referred to in sub-section (4), he shall apply to the Adjudicating Authority for avoidance of preferential transactions and for, one or more of the orders referred to in (2) A corporate debtor shall be deemed to have given a preference, if - (a) there is a transfer of property or an interest t hereof of the corporate debtor for the benefit of a creditor or a surety or a guarantor for or on account of an antecedent financial debt or operational debt or other liabilities o....