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2022 (3) TMI 1486 - Tri - Insolvency and BankruptcySeeking direction to 1st Respondent Bank to make payment of the Refund Monies to the Corporate Debtor's Account in CIRP - HELD THAT - It is pertinent to point out that when the Consortium of Banks declared the accounts of the Corporate Debtor as NPA, any amounts received into the accounts of the Corporate Debtor should have been for the common benefit of all the Consortium Members. However, without an approval from the Lenders' Agent representing the Consortium of Banks and without obtaining Debit Instructions, the suo moto adjustment of the Refund amounts by the 1st Respondent Bank has the effect of putting other Banks in the Consortium, in a disadvantageous position and especially in the event of any distribution of assets in accordance with Section 53 of IBC, 2016. The said Claim Refund from the Department of Railway's is not in the normal course of business of the Corporate Debtor. The 2nd and 3rd Respondent have been made to be mere spectators of the unauthorized transaction entered on 19.12.2018 by the 1st Respondent. In view of the undisputed fact, the R1 was chosen not to respond to the notice sent through this Tribunal and remained ex-parte. Application allowed.
Issues:
1. Dismissal of applications as infructuous. 2. Transfer of possession of a tenanted portion. 3. Release of property and removal of goods. 4. Appointment of Advocate Commissioner for inventory. 5. Claim for payment of Refund Monies by the Bank. Issue 1: Dismissal of applications as infructuous The Tribunal dismissed two applications, IA/481/IB/2020 and IA/512/IB/2020, as infructuous due to subsequent events, as stated by the counsels representing the parties. The applications were no longer relevant or effective, leading to their dismissal. Issue 2: Transfer of possession of a tenanted portion An application was filed seeking the transfer of vacant possession of a tenanted portion to the Applicant. The Respondent's counsel had no objection to releasing the property but highlighted the need to remove furniture and fixtures from the premises. An Advocate Commissioner was appointed to oversee the inventory and handover of articles to enable the Applicant to take possession within seven days. Issue 3: Release of property and removal of goods The Liquidator's counsel emphasized the need for the companies functioning on the premises to remove all articles, including records, to facilitate the handover of possession to the Landlord/Applicant. An Advocate Commissioner was appointed to ensure the inventory and handover process, with the Applicant bearing the Commissioner's fees. Issue 4: Appointment of Advocate Commissioner for inventory In response to the need for inventory and possession handover, the Tribunal appointed an Advocate Commissioner to oversee the process. The Commissioner was tasked with taking inventories and ensuring the articles at the specified premises were handed over to the concerned persons in the presence of the Liquidator. The Applicant was directed to pay a specified sum to the Commissioner for the services rendered. Issue 5: Claim for payment of Refund Monies by the Bank Another application sought an order directing a Bank to make payment of Refund Monies to the Corporate Debtor's account. The Liquidator relied on specific events and adjustments made by the Bank regarding the Claim Refund amount. The Bank's unilateral adjustment without informing other parties was highlighted, leading to a claim for the refund amount to be made to the Corporate Debtor's account in CIRP. The Bank chose not to respond, resulting in the application being allowed by the Tribunal.
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