TaxTMI 
TaxTMI 
2021 (1) TMI 1322
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....tor equivalent to the sums as stated in this application, in respect of benefits wrongfully availed by from the Corporate Debtor. b. Pass appropriate directions/ orders in terms of Section 67 of the Code including for recovery/ restoration of legitimate amounts due to the Corporate Debtor. c. Intimate IBBI for initiating a complaint to the Special Court in terms of Section 236(2) of the Code, if this Hon'ble Tribunal deems fit. d. Impose such fine under section 70 and 71 of the Code upon the Respondents as this Hon'ble Tribunal may deem fit. 2. Heard the counsels of the Applicant as well as the Respondents. 3. The Applicant submits that the CIRP process of Royal Refinery Private Limited commenced on 13.11.2019 and the Applicant was appointed as Interim Resolution Professional. 4. Public announcement of CIRP in the present matter issued on 21.11.2019 in 'Form A' under regulations of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, was published in newspapers viz BUSINESS STANDARD dated 22.11.2019, FREEPRESS JOURNAL dated 22.11.2019 and NAVSHAKTI dated 22.11.2019. Thus, intimating....
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.... from his position via email dated 18.12.2020. 12. The Respondent No.1 filed its reply and following are the contentions: a. The R1 submits that this I.A is filed by the Applicant is vague, lack merits and false, he also submits that the Hon'ble Tribunal may not consider such Application as per settled law and relevant provisions. b. The R1 submits that the R1 is neither the Corporate Debtor in main petition or in present I.A, nor promoter/suspended director of the Corporate Debtor. The R1 is the separate and independent entity therefore not liable for any wrongful or fraudulent trading with the Corporate Debtor. c. The alleged amount was given by the Corporate Debtor to R1 as the long-term borrowings (Loan) and not credit for trading activities, as there are no fraudulent transactions. The R1 submits that due to financial crunch and due to Covid-19 the R1 failed to repay the dues of the Corporate Debtor. d. The R1 further submits that these transactions do not fall under section 66 of the Code as these are the honest in nature. 13. The Respondent No.2 & 3 are the suspended directors of Royal Refinery. They have filed their reply and submit....
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....e Corporate Debtor as a result of search and seizure exercise carried out by DRI as a result of fraud committed by the suspended directors of the Corporate Debtor under Customs Act, 1962. This search and seizure and resultant confiscation of records by the Department of customs happened sometimes in the 3rd week of May, 2019. 17. The Bench notes that in reply to this IA, Respondent No. 1 i.e. Baiju Trading and Investment Private Limited who is the principal beneficiary of this fraudulent transaction has submitted a copy of the Ledger of the Corporate Debtor in R1's Books of Account in which it owes to the Corporate Debtor around Rs. 41.24 crore. The ledger of the Corporate Debtor company as appearing in the accounts of R1 is as under: - 18. It becomes amply clear from the above that as per own submissions of R1 that when the CIRP of the Corporate Debtor commenced on 13.11.2019, the R1 owned Rs. 41.24 crore to the Corporate Debtor. Here the Bench also notes that it matches with the tally data and Ledgers obtained by the Resolution Professional from the DRI records which also show that amount due from R1 as appearing in the Ledger of R1 being maintained with the Corporate Debto....
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....- 35A. Preferential and other transactions. (1) On or before the seventy-fifth day of the insolvency commencement date, the resolution professional shall form an opinion whether the corporate debtor has been subjected to any transaction covered under sections 43, 45, 50 or 66. (2) Where the resolution professional is of the opinion that the corporate debtor has been subjected to any transactions covered under sections 43, 45, 50 or 66, he shall make a determination on or before the one hundred and fifteenth day of the insolvency commencement date, under intimation to the Board. (3) Where the resolution professional makes a determination under sub-regulation (2), he shall apply to the Adjudicating Authority for appropriate relief on or before the one hundred and thirty-fifth day of the insolvency commencement date. 24. The Bench is aware that section 66 (1) of IBC imposes a liability on any person who knowingly becomes party in carrying out the business with a dishonest intent to defraud the creditors have to make a contribution to the assets of the Company. Therefore, the Bench is of the considered view that the R1 i.e Baiju Trading investment....
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....18 to 13-Nov-2019 Page 769 Vch Type Vch No. Debit Credit 41,24,25,000.000 21,25,000.000 41,24,25,000.000 21,25,000.000 Date 1-4-2018 Cr Particulars Opening Balance 18-5-2018 Dr Union Bank of India [A/c 408101010036700] Receipt Dr Closing Balance 41,03,00,000.000 41,24,25,000.000 41,24,25,000.000 Document 3 Royal Refinery Pvt. Ltd.- Final 3-E,Trishla Premises Co-Op Society Ltd. 3rd Floor, Sheikh Menon Street, Mumbai 400 002. Mfg Unit: D/328 TTC, Industrial Estate, MIDC Turbhe, Navi Mumbai-400703 Company's Vat TIN :27480909738 V Company's Vat TIN :27480909738 C C.Ex.Regn.No. AAFCR7596EEM003 NIC Code: 27205 CIN: U74120MH2012PTC228597 Shri Baiju Trading and Investment Pvt Ltd Ledger Account 3RD FLOOR, BLDG. NO. 134/136, ABOVE RATNAMANI JEWELLERS, SHEIKH MEMON STREET, ZAVERI BAZAR MUMBAI 1-Apr-2018 to 13-Nov-2019 Date 1-4-2018 To Particulars Opening Balance 18-5-2018 By Union Bank of India [Ale 408101010036700] By Closing Balance Vch Type Receipt Page 1 Vch No. Debit Credit 41,24,25,000.000 21,25,000.000 41,24,25,000.000 21,25,000.000 ....