2022 (7) TMI 234 - Tri - Insolvency and Bankruptcy

CIRP - Preferential Transactions or not - related transaction or not - Transaction within look bak period - such transactions are carried with intent to defraud creditors or not - Section 25(2)(J), 43, 45, 66 and Section 235A of the Insolvency and Bankruptcy Code, 2016 - HELD THAT - Admittedly, except Respondent No. 6 and the respondent no. 6 in its reply has placed reliance on the judgment passed by the Hon'ble Supreme Court of India in the matter of Anuj Jain Vs. Axis Bank Limited 2020 (2) TMI 1259 - SUPREME COURT in which it was held that the transactions deemed to be preferential can be excluded if they are considered to be done in the ordinary course of business or financial affairs of the corporate debtor. The respondent No. 6 has placed on record copies of Purchase Orders, Statement of bank accounts and ledger accounts to show that the alleged transactions were done during the ordinary course of business. There is nothing on record to show that the respondent no. 6 is a related party to the corporate debtor. Therefore, since there is nothing on record to suggest that the respondent no. 6 is a related party then the relevant time period would be one year prior to commencement of CIRP and thus, the alleged transactions are outside the purview of Section 43 of the Code in respect to the Respondent No. 6. On going through the each and every transaction submitted by the Resolution Professional, and after elaborate examination it is seen that the impugned transactions are preferential transactions, except in respect of respondent no. 6 as defined in the sub-section 2(a) of Section 43 of the IBC as these transactions have been executed within the look back period of two years before the commencement of Insolvency proceeding and are therefore covered under section 43(4)(a). Further the transaction mentioned in para 6 above are therefore held to be undervalued transactions in terms of Section 45 of the Code and Transaction as explained in para 7 are held to be fraudulent transactions as defined under Section 66 of the Code. The Respondents, except respondent no. 6, are hereby directed to pay the amounts as explained in para 5, 6 and 7 to the corporate debtor within 30 days from the date of the pronouncement of this order - appliaction allowed.

Summary

Issues Involved:
1. Preferential Transactions under Section 43 of the Insolvency and Bankruptcy Code (IBC), 2016.
2. Undervalue Transactions under Section 45 of the IBC, 2016.
3. Fraudulent Transactions under Section 66 of the IBC, 2016.
4. Compliance with Section 25(2)(J) and Section 235A of the IBC, 2016.

Detailed Analysis:

1. Preferential Transactions under Section 43 of the IBC, 2016:
The applicant, Mr. Tarun Batra, appointed as the Resolution Professional (RP), identified several transactions as preferential based on the transaction audit report. The transactions were not conducted in the ordinary course of business and were intended to favor certain creditors over others. Key instances include:
- Shree Ji International: Rs. 75.00 Lakhs considered preferential as payments were made outside the ordinary course of business.
- Ram Bhaj Jain (Suspended Director): Rs. 10.29 Lakhs identified as preferential transactions within the relevant period.
- Radico Trading Limited: Payments amounting to Rs. 2.86 Crores and Rs. 4.07 Crores were considered preferential.
- G.G. Enterprises and Hinglaj Enterprises: Transactions were not in the ordinary course of business and thus considered preferential.

2. Undervalue Transactions under Section 45 of the IBC, 2016:
The applicant submitted that several transactions were undervalued, with the intent to transfer assets out of the reach of creditors. Key instances include:
- Kundan Trading Co.: Sale of rice at significantly lower prices, resulting in a loss of Rs. 781.78 Lakhs.
- R.K. International: Sale of rice at undervalued prices, resulting in a loss of Rs. 744.12 Lakhs.
- Panchdev Foods & Chemicals Pvt. Ltd.: Sale of rice at undervalued prices, resulting in a loss of Rs. 7.06 Lakhs.
- Kanha Rice and Paddy Traders and Saraswati Foods: Similar undervalued transactions resulting in significant losses.
- Panchdev Foods and Chemical Limited: Sale of vehicles below fair market value.

3. Fraudulent Transactions under Section 66 of the IBC, 2016:
The applicant identified transactions intended to defraud creditors. Key instances include:
- Sansar International: Sales and purchases without actual movement of goods, inflating values to defraud creditors.
- Cap Commodities House and Bharat Agro Foods: Similar fraudulent transactions without actual movement of goods.
- East India Overseas and Life Time Enterprises: Purchases without actual transactions, inflating stock values.
- Panchdev Foods and Chemicals Pvt. Ltd., Shivoham Enterprises, Kundan Trading Co., and R.K. International: Transactions without proper documentation, intended to defraud creditors.

4. Compliance with Section 25(2)(J) and Section 235A of the IBC, 2016:
The RP is required to preserve and protect the assets of the Corporate Debtor and apply for the avoidance of such transactions. The Tribunal found that the RP had fulfilled these duties by identifying and reporting the preferential, undervalue, and fraudulent transactions.

Judgment:
- The Tribunal directed the respondents, except Respondent No. 6, to pay the amounts identified as preferential, undervalue, and fraudulent transactions to the corporate debtor within 30 days.
- The RP was directed to initiate penal proceedings against the suspended directors and other involved parties.
- The order was to be communicated to the parties and the Insolvency and Bankruptcy Board of India (IBBI) for further action.

The Tribunal concluded that the transactions identified by the RP were indeed preferential, undervalued, and fraudulent, except those involving Respondent No. 6, who was found to be acting in the ordinary course of business.