2021 (1) TMI 1223 - Tri - Insolvency and Bankruptcy

Direction to Respondent No.1/Operational Creditor to repay with interest the money wrongfully received and retained under the three SWIFT remittances to be returned to the Bank Account of the Corporate Debtor along with applicable interest at the rate of 18% p.a. calculated from the date of receipt of payments till actually repaid - HELD THAT - It is seen that as per the audited account as on 31st March 2019 the dues payable to the Respondent No.1 (Operational Creditor) is 91, 05, 994/- and this fact was admitted by the applicant stating that the audited accounts have been finalized even before the admission of the Corporate Debtor under CIRP. This Tribunal also while admitting the aforesaid Application relied on the Audited Accounts and based on the same it was held that the amount payable to Respondent No.1 (Operational Creditor) is more than the threshold limit of one lakh rupees. While admission of the matter during arguments the Corporate Debtor has not raised any of the points raised in this application as the applicant was silent waiving the Corporate Debtor right to file an appeal if the Corporate Debtor was really aggrieved by the aforesaid admission of the matter. Without taking recourse of the remedies available to them now they have come up with this application to release them from the process of CIRP revoking the order of this Tribunal passed on 7/11/2019. The applicant in the guise of an application under Section 60(5) of the IB Code is trying to re-open an admitted matter which cannot be allowed. Since the matter has attained finality and the Resolution Professional has already filed an application for approval of the Resolution Plan and that the claim put forward by the Operational Creditor through IA(IBC)/33/KOB/2021 has been dismissed by this Tribunal it is too late to pass any orders in this matter. Application dismissed.

Summary

Issues Involved:
1. Repayment of money received through SWIFT remittances.
2. Revocation of Corporate Insolvency Resolution Process (CIRP) order.
3. Imposition of penalty for malicious proceedings.

Issue-wise Detailed Analysis:

1. Repayment of money received through SWIFT remittances:
The applicant, a suspended director of the Corporate Debtor, sought the repayment of USD 894,000 received by the Operational Creditor through three SWIFT remittances, claiming the amounts were wrongfully retained. The applicant argued that the Operational Creditor manipulated records to make exaggerated claims and that the amounts received were not against any invoices or advance payments for future supplies. The Operational Creditor countered these claims, asserting that the payments were made for the supply of materials and were supported by invoices and email correspondences. The Tribunal noted that, as per the audited accounts, the dues payable to the Operational Creditor were ?91,05,994 and that any apportionment of payments without proper authorization would violate RBI regulations. The Tribunal found no merit in the applicant's claims and dismissed the application.

2. Revocation of Corporate Insolvency Resolution Process (CIRP) order:
The applicant requested the revocation of the CIRP order dated 7th November 2019, arguing that the Operational Creditor's claims were exaggerated and malicious. The Tribunal observed that the audited accounts as of 31st March 2019 showed dues payable to the Operational Creditor, which justified the initiation of CIRP. The Tribunal emphasized that the applicant had not raised these issues during the initial hearings and had not appealed the CIRP order, which had attained finality. The Tribunal concluded that the applicant was attempting to reopen an admitted matter under the guise of an application under Section 60(5) of the Insolvency and Bankruptcy Code (IBC), which was not permissible. The application for revocation was thus dismissed.

3. Imposition of penalty for malicious proceedings:
The applicant sought the imposition of a penalty on the Operational Creditor for allegedly initiating malicious proceedings. The Operational Creditor refuted these allegations, stating that their claims were genuine and supported by records. The Tribunal found that the Operational Creditor's claims were based on the audited accounts and that there was no evidence of malicious intent. Consequently, the Tribunal dismissed the request for imposing a penalty on the Operational Creditor.

Conclusion:
The Tribunal dismissed the applicant's miscellaneous application, finding no merit in the claims for repayment of SWIFT remittances, revocation of the CIRP order, or imposition of a penalty for malicious proceedings. The Tribunal emphasized that the issues raised by the applicant had already been addressed during the initial hearings and that the CIRP order had attained finality. The application was deemed an attempt to reopen an admitted matter, which was not allowed under the IBC.