2020 (9) TMI 745 - Tri - Insolvency and Bankruptcy

Unauthorized and illegal withdrawal of amount made by the ex-management of the Corporate Debtor - CIRP process - Section 66(1) of I B Code - HELD THAT - This Bench does not have any doubt that in terms of Section 66(1) of the Code, the Respondents No. 1, 2 and 3, during the Corporate Insolvency Resolution Process period, carried out these transactions with intent to defraud the creditors of the Corporate Debtor. This case is fully covered under Section 66(1) of the Code. This Bench is also satisfied that the ex-directors were aware of the Moratorium Order of 17.09.2019 under Section 14 of the Code. This Bench finds the ex-directors of the Corporate Debtor Company to be guilty of willful disobedience of the Order of this Bench dated 17.09.2019. The Respondents No. 1 and 2, i.e., the ex-directors of the Corporate Debtor being found violating the Moratorium imposed under Section 14 of the Code, are punishable with imprisonment for a term which shall not be less than 3 years, but may extend to 5 years or with fine which shall not be less than ₹ 1 Lakh but may extend to ₹ 3 lakh or with both. Respondent No. 3, who has connived and is the beneficiary of the fraudulent transaction and is squarely covered under Section 66(1) of the Code, shall deposit ₹ 2,42,54,121/- within a period of 2 weeks in the Corporate Debtor s account at Oriental Bank of Commerce - Respondents No. 1 and 2 to deposit a sum of ₹ 9,192/- withdrawn unauthorizedly and illegally despite the imposition of Moratorium. The amount be deposited within a period of 2 weeks in the Corporate Debtor s account at Oriental Bank of Commerce - Respondents No. 1 and 2, each to pay a fine of ₹ 1,00,000/- for violating the Moratorium under Section 14 of the Code. The amount be deposited within a period of 2 weeks in the Corporate Debtor s account at Oriental Bank of Commerce.

Summary

Issues Involved:
Unauthorized and illegal withdrawal of funds during the Corporate Insolvency Resolution Process (CIRP), violation of the moratorium under Section 14 of the Insolvency and Bankruptcy Code (IBC), fraudulent transactions, and penalties under Sections 66 and 67 of the IBC.

Detailed Analysis:

1. Unauthorized and Illegal Withdrawal of Funds During CIRP:
The application was filed under Sections 9, 66, and 67 read with Rule 25(2)(j) of the Insolvency & Bankruptcy Code, 2016, by the Resolution Professional concerning unauthorized and illegal withdrawals amounting to ?2,42,54,121/- made by the ex-management of the Corporate Debtor between 20.09.2019 and 15.10.2019. The CIRP commenced on 17.09.2019. The Resolution Professional discovered the existence of a bank account with Samruddhi Co-operative Bank Ltd., Nagpur, opened by the ex-management during the hearing of the case. The account received substantial deposits during the CIRP, which were then withdrawn without informing the Resolution Professional, violating Section 14 of the IBC.

2. Violation of Moratorium Under Section 14 of the IBC:
The Respondents Nos. 1 and 2, who were the ex-directors and authorized signatories, were aware of the moratorium but continued to operate the bank account and made withdrawals. The Applicant issued a letter to the bank seeking details and found that the account was closed without prior intimation during the CIRP. The Respondents were directed to deposit the withdrawn amount back into the Corporate Debtor’s account.

3. Fraudulent Transactions:
The Respondent No. 3 was identified as the main beneficiary of the unauthorized transfers. The Respondents Nos. 1 and 2 claimed they were not beneficiaries and had handed over cheques to Respondent No. 3 as security before the CIRP. However, the Tribunal found that Respondent No. 3 had prior knowledge of the deposits and withdrew the amounts, indicating collusion and fraudulent intent. The Tribunal noted that the Respondents failed to provide a credible explanation for the timing and amounts of the transactions.

4. Penalties Under Sections 66 and 67 of the IBC:
The Tribunal concluded that the Respondents Nos. 1, 2, and 3 carried out transactions with the intent to defraud the creditors of the Corporate Debtor, violating Section 66(1) of the IBC. The ex-directors were found guilty of willful disobedience of the moratorium order and were punishable under Section 14 of the IBC. The Tribunal directed Respondent No. 3 to deposit ?2,42,54,121/- and Respondents Nos. 1 and 2 to deposit ?9,192/- back into the Corporate Debtor’s account. Additionally, Respondents Nos. 1 and 2 were each fined ?1,00,000/- for violating the moratorium.

Conclusion:
The Tribunal found that the Respondents Nos. 1, 2, and 3 engaged in unauthorized and illegal withdrawals during the CIRP, violating the moratorium under Section 14 of the IBC. The transactions were deemed fraudulent, and penalties were imposed under Sections 66 and 67 of the IBC. The Respondents were directed to return the withdrawn amounts and pay fines for their actions. The application was allowed, and the order was to be communicated to all parties involved.