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TMI Blog2021 (2) TMI 1201X X X X Extracts X X X X X X X X Extracts X X X X ..... t was subsequently confirmed as the Resolution Professional (RP) by the Committee of Creditors of the Corporate Debtor (CD) under the relevant provisions of the Act on 07.03.2019. 3. It is also seen that paper publications were duly effected calling claims from the Creditors in Form 'A' in accordance with the provisions of IBC, 2016. The gravamen of the charge as against the 1st and 2nd Respondents in this Application is that the 2nd Respondent being the Director, whose powers stood suspended acting on behalf of the Corporate Debtor had executed a Sale Deed purportedly agreeing to transfer land to an extent of 99,456 sq.ft. belonging to the Corporate Debtor valued at Rs. 1,69,07,520/- by virtue of Sale Deed executed between the parties on 04.07.2018 and Registered as Doc. No. 1812/2018 on the file of the Office of the Sub - Registrar, SH128, Shankar Nagar, Sholinghur. The land is stated to have been situated as dealt within the Sale Deed dated 04.07.2018 at Pandyanallur Village, comprising of 68 vacant residential plots in the Survey Numbers contained in the schedule as given in the Sale Deed. The consideration for the sale is stated to be Rs. 1,69,07,520/- to be adjusted aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsideration the above transactions, the following reliefs have been sought by the Applicant / RP :- 1. Declare the said transfer, executed by way of Sale Deed dated 04-JUL-2018 registered as Document bearing No. 1812 of 2018 on the file of Office of the Sub - Registrar, SH128, Shankar Nagar, Sholingur, Tamil Nadu 631102 as evidenced by the copy of the said document found in Annexure 2, executed on behalf of the CD by the 2nd Respondent, as granting preference to the 1st Respondent and thus being in contravention to Section 45 (1) of the Code. 2. Set aside the said transfer, executed by way of the aforesaid Sale Deed dated 04-JUL-2018 registered as Document bearing No. 1812 of 2018 in favour of the 1st Respondent, as aforesaid and require the property (ies) so transferred to vest in the Corporate Debtor and thus restore position as it existed before such transfer as if the transaction (s) has not been entered into. 3. Declare that the 1st Respondent has no right, title or interest in the subject matter property, consequently. 4. Direct the 1st Respondent to surrender all the original documents pertaining to the said transfer including the original document found in Annexure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... need of raw materials to run its operations and was not having the liquidity to even pay wages to its workmen and faced with the consequences of the unit of the Corporate Debtor being closed and since the same would have proved disastrous at the relevant point, transaction was undertaken in the course of business activities and to run the day to day affairs of the Corporate Debtor. e) There is no preference in the transaction as between the Corporate Debtor and the 1st Respondent as the payment due to the 1st Respondent was settled in due course of business activities of the 1st Respondent which was in subsistence from 01.04.2018. f) Further it is contended that no benefit has been received by the 1st Respondent as a recipient viz., the 1st Respondent has received only as per its entitlement by virtue of the transaction and by transferring the parcel of land, the Corporate Debtor had only settled its liability against Respondent No.1 and did not extend any undue benefit to it. No material has been shown by the Resolution Professional that the consideration for the value as shown in the Sale Deed is less than the real value which was transferred by the Corporate Debtor. g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at since the Corporate Debtor had expressed its inability to settle the dues owing to unfavourable market conditions and the Corporate Debtor also being in possession of an unencumbered land had offered the same for a consideration of Rs. 1,69,39,541/- with a view to settle the dues of the 1st Respondent. The extent of land as given therein is to the extent of 99,456 sq.ft. The schedule to the Sale Deed consists the following details viz., SCHEDULE Sl. No. Plot No. Area (Sq. Ft.) 1 243 2427 2 244 1200 3 245 1200 4 246 2400 5 247 3503 6 248 1625 7 249 1614 8 250 1563 9 251 1527 10 252 1502 11 253 1461 12 254 1424 13 255 1387 14 256 1780 15 257 1116 16 258 1200 17 259 1200 18 260 1200 19 261 1200 20 262 1200 21 263 1200 22 264 2400 23 272 1200 24 273 1824 25 274 1779 26 275 1734 27 276 1689 28 290 2400 29 291 1200 30 292 1200 31 293 1200 32 294 1200 33 295 1200 34 296 1200 35 297 1088 36 298 1033 37 299 1200 38 300 1200 39 301 1200 40 302 1200 41 303 1200 42 304 1200 43 305 2400 44 322 2400 45 323 12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esolution professional is ordinarily required to do could be illustrated as follows: 1. In the first place, the resolution professional shall have to take two major but distinct steps. One shall be of sifting through the entire cargo of transactions relating to the property or an interest thereof of the corporate debtor backwards from the date of commencement of insolvency and up to the preceding two years. The other distinct step shall be of identifying the persons involved in such transactions and of putting them in two categories; one being of the persons who fall within the definition of 'related party' in terms of Section 5(24) of the Code and another of the remaining persons. 2. In the next step, the resolution professional ought to identify as to in which of the said transactions of preceding two years, the beneficiary is a related party of the corporate debtor and in which the beneficiary is not a related party. It would lead to bifurcation of the identified transactions into two sub-sets: One concerning related party/parties and other concerning unrelated party/parties with each sub-set requiring different analysis. The sub-set concerning unrelated party/parties shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion is a preferential one or otherwise it is evident that the Applicant has not made any plea in relation to the 1st Respondent to be a related party other than stating that the Transaction is as between the Respondents who have colluded. 19. Coming to Step 2, in the absence of the 1st Respondent being the related party to the Corporate Debtor the sunset phase provided under the provisions of IBC, 2016 is of one year prior to the date of initiation of the CIRP. 20. Proceeding to Step No.3, it is evident from the Sale Deed that vesting of the property belonging to the Corporate Debtor is sought to be created to the 1st Respondent and that it is also evident from the recitals to the Sale Deed as well as the Statement of Accounts being Ledger Accounts of the Corporate Debtor annexed along with the Application which is not disputed by the 1st Respondent that the 1st Respondent stands in the capacity of an Operational Creditor as defined under the provisions of IBC, 2016. 21. In relation to Step No.4, it is also evident that the transaction which is sought to be impugned by the Applicant is in relation to the antecedent Operational Debt owed by the Corporate Debtor to the Opera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he other Operational Creditors who are similarly placed like the 1st Respondent. 25. In relation to the sixth step as prescribed by the Hon'ble Supreme Court of India as to whether it will pass through the filtrations to find if it does not answer to either clauses (a) and (b) of Sub Section 3 of Section 43, the Hon'ble Supreme Court of India has given a vital guideline as to how the same is required to be analysed by the RP and in effect how this Tribunal is required to consider an Application of a nature similar to the present one as given in Paragraph 25.6 and 25.6.1. of the Judgment in Anuj Jain's case (supra). 25.6. The result of discussion in the foregoing paragraphs is that the transfers in question could be considered outside the purview of sub-section (2) of Section 43 of the Code only if it could be shown that same were made in the 'ordinary course of business or financial affairs' of the corporate debtor JIL and the transferees. Even if transferees submit that such transfers had been in the ordinary course of their business, the question would still remain if the transfers were made in the ordinary course of business or financial affairs of the corporate debtor J ..... X X X X Extracts X X X X X X X X Extracts X X X X
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