2021 (11) TMI 23 - Tri - Insolvency and Bankruptcy

Seeking restoration of amount by the Respondent to Corporate Debtor, which was placed under CIRP - seeking to declare the transaction as unauthorized and punish for violation of the moratorium - Bar u/s 14 of IBC to debit CD's bank account - HELD THAT - This Authority imposes Moratorium after the commencement of CIRP. The objective is to facilitate orderly completion of the process and ensure that CD continues as a going concern while the creditors take a view on resolution of default. Thus, in the present case in hand, it is the plea of the Respondent that the transactions were done as the hospital (CD) cannot function without its staff like the doctors and the payments were made towards their fees which is essential especially during the pandemic. It is observed that XMC's Agreement had formally ceased just before the pandemic (March 2020), however, the services rendered by XMC were not abruptly discontinued rather certain services had to continue through XMC or through suppliers in spite of the issues of reconciliation of account by CD. It is seen that the Applicant has not given the details of the personal account of the Respondent, in the absence of that we are not able to find whether any money was transferred to his personal bank account - the expenditures had to be made by the people who had the authority as recorded with the banks (signatures on cheque books, passwords for electronic transfer etc). Application dismissed.

Summary

Issues:
Application for restoration of funds under IBC against a director for unauthorized transactions during CIRP.

Analysis:
1. The Resolution Professional filed an application against the Director of a company under Section 60(5)(b) read with various sections of the Insolvency and Bankruptcy Code, seeking restoration of funds totaling to &8377; 55,29,506 withdrawn from the company's accounts during the Corporate Insolvency Resolution Process (CIRP). The Applicant alleged that the withdrawals violated the moratorium imposed under Section 14 of the IBC, prohibiting transactions involving the company's assets.

2. The Respondent, as the Director, justified the transactions by claiming they were essential to keep the company operational, especially during the pandemic. The Respondent cited an Operational and Management Agreement with another entity, stating that the transactions were made in good faith to cover expenses such as doctor fees, staff salaries, and vendor payments. The Respondent argued that the funds were utilized to maintain the company as a going concern.

3. The Tribunal examined the transactions and bank statements provided by both parties. While the Applicant alleged diversion of funds to the personal account of the Respondent, the Respondent presented evidence of credits and debits in the company's accounts, indicating efforts to sustain the company's operations. The Tribunal noted the critical services provided by the Respondent during the challenging circumstances of the pandemic, emphasizing the necessity of certain expenditures to ensure the company's continuity.

4. The Tribunal observed that the Respondent's actions were in line with the company's operational requirements and did not indicate any unauthorized transfer of funds to personal accounts. Considering the exceptional circumstances during the peak of the pandemic, the Tribunal found that the transactions were made in the best interest of the company's functioning. As a result, the Tribunal rejected the prayers for restoration of funds and dismissed the application, directing the Registry to communicate the order to the parties promptly.

This detailed analysis of the judgment provides a comprehensive overview of the legal issues, arguments presented by both parties, and the Tribunal's reasoning leading to the final decision.