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TMI Blog2019 (6) TMI 134X X X X Extracts X X X X X X X X Extracts X X X X ..... creditors of the Corporate Debtor or for any fraudulent purpose. A so called alleged violation of Section 43 or Section 45 or Section 46 cannot be termed to be made for fraudulent purpose - the Adjudicating Authority has found that transactions were made in the year 2009-10 and the purchasers also taken possession and perusal of the documents reflects that agreements for sale are duly registered documents with adequate stamp duty paid. Appeals dismissed. - Company Appeal (AT) (Insolvency) No. 679 of 2018, 680 of 2018 and 681 of 2018 - - - Dated:- 2-5-2019 - Mr. S. J. Mukhopadhaya, Chairperson and Mr. Bansi Lal Bhat (Judicial) For Appellant : Mr. Naveen Sharma, Advocate with Mr. Anup Kumar, Resolution Professional. For Respondents : Mr. Sanjay Goswami and Mr. K. Bhimram Achary, Advocates. Mr. Pawan Sharma and Ms. Arpita Yadav, Advocates for R-1. , Mr. Navneet Gupta and Mr. Bharat Monga, Advocates. JUDGMENT The Resolution Professional of M/s Shivkala Developers Pvt. Ltd. (Corporate Debtor) filed three applications under Section 45, 49, 50(5) and 66 r/w Section 25(2) of the Insolvency and Bankruptcy Code, 2016 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the meaning of Section 66 of the Code. 7. In another CA. No. 294/2018, it was alleged that similar transaction was made, as made above related to an agreement-cum-allotment dated 8th May, 2018 in respect of floor space admeasuring 7385 sq. ft. on the fifth floor of the same Commercial Complex. 8. In CA No. 295/2018, allegation related to agreements to sell dated 13th February, 2009, 6th April, 2009 and 31st October, 2009 in respect of the third, fourth and first floor comprising of 5,000 sq. ft., Shop No. 1112 on the lower ground floor and other floor space detailed therein, in the same Commercial Complex, Fortune Smile. 9. Section 43 of I B Code deals with preferential transactions and relevant time and reads as follows:- 43 . Preferential transactions and relevant time .- (1) Where the liquidator or the resolution professional, as the case may be, is of the opinion that the corporate debtor has at a relevant time given a preference in such transactions and in such manner as laid down in sub-section (2) to any persons as referred to in sub-section (4), he shall apply to the Adjudicating Authority for avoidance of preferent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preceding the insolvency commencement date; or (b) a preference is given to a person other than a related party during the period of one year preceding the insolvency commencement date. 10. It is not the case of the Resolution Professional that the transfer of property or interest thereof to the Corporate Debtor for the benefit of a creditor has been made or the transfer has been effective on putting such creditor in beneficial position than it would have been in the event of distribution of assets in accordance with Section 53. No such case having pleaded, we hold that the Resolution Professional failed to make out a case under Section 43 and transfer in question having made in ordinary course of business, the Corporate Debtor being a developer of real estate on the land allotted by Noida Authority for development of Commercial Complex, the application under Section 43 has been rightly rejected. 11. At this stage it is desirable to state that the Respondents have not been termed to be a related party and preference has been given during the period of two years preceding the insolvency commencement date. The insolvency proceeding has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cy commencement date and in fact were made about 8-9 years back, the application under Section 45 r/w Section 46 preferred by Resolution Professional was uncalled for. 16. Section 50 deals with extortionate credit transactions and reads as follows:- 50. Extortionate credit transaction .- (1) Where the corporate debtor has been a party to an extortionate credit transaction involving the receipt of financial or operational debt during the period within two years preceding the insolvency commencement date, the liquidator or the resolution professional as the case may be, may make an application for avoidance of such transaction to the Adjudicating Authority if the terms of such transaction required exorbitant payments to be made by the corporate debtor. (2) The Board may specify the circumstances in which a transactions which shall be covered under sub-section (1). Explanation.-For the purpose of this section, it is clarified that any debt extended by any person providing financial services which is in compliance with any law for the time being in force in relation to such debt shall in no event be considered as an extortion ..... X X X X Extracts X X X X X X X X Extracts X X X X
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