TaxTMI 
TaxTMI 
2026 (8) TMI 1527
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....ht for a relief for an issuance of an appropriate direction, in the shape of an order against the appellant herein. The relief prayed for therein was for remittance of the money, which has been alleged to have been wrongfully transferred pertaining to the work that, had taken place prior to the period of CIRP, however, the amount in relation to it was received after the initiation of CIRP, without the knowledge of the Resolution Professional. The relief thus claimed in the I.A. was structured in the following manner: "(a) Pass an order directing the Respondents No 1 to 14 to return/ remit back the money wrongfully received from the Corporate Debtor during the moratorium period which purportedly pertains to the pre-CIRP Period as being violative of Section 14 of the Code and the moratorium imposed by this Hon'ble Tribunal. (b) Pass an order directing the Respondents No 1 to 14 to pay interest at the rate of 18% in terms of Section 3 of the Interest Act, 1978 on the amounts transferred received during the moratorium period (c) Such further/other appropriate order(s) or direction(s) as this Hon'ble Tribunal may deem fit and proper in the facts and ci....
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....eged by the Applicant/Respondent herein to be after the commencement of the CIRP on 25.07.2023, would be in violation to the imposition of moratorium. 8. The precise backdrop, as it was finding reference in the application that was preferred by the respondent, it was for the purposes of remittance of the amount. It's the case that when upon initiation of Section 7 proceedings under the Code, by an order that, was passed on 25.07.2023, the order of initiation of CIRP was placed in public domain by its uploading on the site of the Ld. NCLT on 27.07.2023. Because of the foresaid fact it could be bonafidely and under law too, be assumed that, it was brought in public knowledge. Hence, as a consequence of the order dated 25.07.2023, a declaration too was made under Section 14 of the Code. Giving a public intimation as regards to the restrictions those were contained under Section 14 of the Code, for those who would be concerned with the order of 25.07.2023. 9. The respondent's case before the Ld. Tribunal, had been that, despite acquiring the knowledge, on 11.09.2023, as regards to the fact, about a sum of Rs. 1,01,04,908/- was lying in the current account of the Corporate Debtor,....
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....ing of yet another reminder of 04.10.2023, reiterating the direction for return of money. This reminder of 04.10.2023 was ultimately responded by the appellant by filing a reply to it on 21.10.2023, herein the appellant took a defense that, it was not obligatory for the appellant to remit the amount, as the same has not been transacted in contravention to the norms settled as per law of moratorium. But however in the reply of the appellant, submitted on 21.10.2023, what is relevant is that the transfer of the amount and the period of its transfer was falling within the period of admission of the CIRP and during the period when the moratorium was being imposed and was in continuance, it stood as a fact admitted. 15. Hence, the respondent came up with the case, that causing any encumbrance or transferring alienating or disposing of the corporate debtor's property or its assets or any legal right or benefit or interest therein to the assets of Corporate Debtor, would be barred by Section 14(1)(b). Hence, the money that was received from the Corporate Debtor, was required to be remitted back, being in violation of the moratorium imposed by the tribunal. 16. When this application ....
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....s, the Ld. Tribunal had rightly concluded that, perusal of the account statement that, was placed on record before it and which had also constituted, as to be the part of the notice dated 18.09.2023, shows that the credit of the amount did take place into the bank account of the Corporate Debtor, it was possibly the amount credited by the BJP into the said bank account. The entries made into the accounts showed the transaction of money and flow of money through those transactions into the accounts of the Corporate Debtor, which would be attributable and related to the aforesaid event/meet, which expressly showed was in violation of Section 14 of the Code. Looking to the period of transaction and its actual completion upon deposit of amount in the account of Corporate Debtor after imposition of moratorium. 19. A very peculiar stand that has been taken by the appellant, though it cannot be taken to be sustainable in the eyes of law is from the perspective that, they were not conscious about the initiation of CIRP process, which stood initiated by an order of 25.07.2023 that, was passed by the Ld. Tribunal. This stand taken by the appellant cannot be accepted under law for the reas....
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....ticularly when the appellant was taking recourse to an existence of a trust. The burden to prove the same was to be discharged by the appellant himself and there was no established relationship of trust or there was even no establishment of the fact that Rs. 80 lakhs constituted to be the amount that was held in trust by the Corporate Debtor, hence, there was a direction for refund of the amount. 21. Though, not a case, which was ever pleaded or even argued by the appellant before the Ld. NCLT, but for the first time it has been argued by the appellant before us, that the recourse under Section 60(5) to be r/w Section 14(1)(b) was not available to the respondent, owing to the fact that the recourse available to the respondent would have been under Section 74 of the Code. The implications of Section 74 of the Code was an issue, which could be effectively determined on application of fact and law, which was never argued or established to be argued before the Ld. Tribunal nor it was even a ground agitated in this appeal too in that eventuality, and more particularly when the appellant when is arguing this company appeal as of now. Because of the subsequent amendment made under the ....