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TMI Blog2021 (9) TMI 928X X X X Extracts X X X X X X X X Extracts X X X X ..... on Professional (RP in short) of the Corporate Debtor. The Resolution Professional filed the Application under Sections 43,44 read with Sections 66,67,69 and 70 of IBC. The Application came to be allowed and hence the present Appeal. 2. Facts in brief may be referred:- The Application under Section 7 was filed on 06th March, 2018 and the Application was admitted on 18th December, 2018. When Committee of Creditors (CoC in short) was formed the Appellant was allowed to continue as Chief Executive Officer to facilitate continuing the Corporate Debtor as a Going Concern. In the absence of Resolution Plan of one Mr. Anirudh Ghole going through, M.A. 3560 of 2019 came to be filed for liquidation of the Corporate Debtor on 05th November, 2019. The Appellant was removed from acting as Chief Executive Officer on 14th November, 2019 in the 10thCoC Meeting. The Appeal refers to other disputes with which the present Appeal is not concerned. 3. On 24th July, 2020, Resolution Professional filed I.A. No. 1108 of 2020 (Annexure A-3, Page 49 of the Appeal) raising two issues: (i) The Appellant-Pandurang Ramchandra Shinde has sold a car -Hundai Sonata, MH-12 AK-760 on 31st December, 2018 which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... directions as per Section 67, 69 and 70 of the Code. 7. The Respondent had appeared before this Tribunal and has submitted a consolidated reply in all the applications pending before this Tribunal in this matter including the reply in this application. Paragraph 9 of the reply deals with this Application and reads as follows: "I state and further submit that Rotomotive filed I.A. No. 1053/2020 and I.A. 1108/2020 under Section 60(5) IBC, I request AA to give direction for circulation of document to CD. Before liquidation order proper attention should be given for any Resolution Plan." 8. We have heard the arguments advanced by the parties and perused all the documents submitted by them and we have observed that the approach of the Respondent is very lenient towards the proceedings before us. Even though there was opportunity given to him to file reply, however, he has chosen not to file a complete reply to this application and only dealt with the contents of this application in a single paragraph not raising any points in his defence. Therefore, basing on the documents submitted by the RP, we are deciding this application." 5. The Adjudicating Authority then in Paragraph 9 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to a tune of Rs. 91,56,687/-. 14. With these above observations and directions, this Interlocutory Application bearing No. 1108 of 2020 is allowed. No costs. I.A. 1108 of 20290 is accordingly disposed of." After passing of the Impugned Order the Learned Counsel for the Resolution Professional sent letter dated 13th January, 2021 (Annexure A-2 Page 47) and informed the Appellant in the context of the Impugned Order that the Appellant has to pay (i) amount of Rs. 13,85,227 (difference of book value of Rs. 14,27,650/- and the amount of Rs. 42,373/- recovered by him as per Tax Invoice) (ii) Rs. 91,56,687 towards the squared off loan amount with the receivables of the Corporate Debtor. The Appellant was thus called upon to comply the order by depositing the amount of Rs. 1,05,41,964/-. Principles of Natural Justice 6. Now the Appellant in the Appeal has claimed and it is argued by him that while passing the Impugned Order there had been violation of Principles of Natural Justice. Appellant claims that he did not get opportunity of being heard. According to him he had filed a Reply which was not considered and that the Adjudicating Authority wrongly marked presence of Mr. Navin Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is nothing on record to show that this Advocate apprised the Adjudicating Authority that he is not instructed in I.A. 1108 of 2020 or that he apprised the Adjudicating Authority that for I.A. 1108 of 2020 for same Appellant (Respondent before Adjudicating Authority) there were different advocates appearing. We reject such approach, which are means of creating grounds to protract matter. There is no material also to show that on 07th January, 2021 or soon thereafter any grievance was raised with the Adjudicating Authority in writing that name of wrong advocate is shown for Respondent with regard to the M.A. concerned. 8. The ground that Principles of Natural Justice were violated is rejected. Squaring off Receivables against Debt. 9. Coming to the issue relating to the squaring off, in the I.A. No. 1108 of 2020 the Resolution Professional referred to documents filed with the I.A. No. 1108 of 2020. Copies of the documents from the ledger accounts /general vouchers of the Corporate Debtor are at Page 109 to 114. These documents reflect the facts regarding the undisputed unsecured loan given by the Appellant to the Corporate Debtor and the dues relating to Meltek Infosystems Pvt. L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unts from the three entities) for the benefit of the Appellant Chief Executive Officer of Corporate Debtor who had to receive back unsecured loan given to Corporate Debtor, and this would put to detriment the other creditors of the Corporate Debtor. Section 43 sub-section 1,2 & 4 of IBC read as under: 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 preferential transactions and for, one or more of the orders referred to in section 44. (2) A corporate debtor shall be deemed to have given a preference, if- (a) there is a transfer of property or an interest thereof of the corporate debtor for the benefit of a creditor or a surety or a guarantor for or on account of an antecedent financial debt or operational debt or other liabilities owed by the corporate debtor; and (b) the transfer under clause (a) has the effect of putting such cred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 27727 at page 4-11 filed documents with regard to such transfer of the car. The Appellant in his written-submissions (diary no. 28616) referred page 7 of these written-submissions of the Resolution Professional where there is tax invoice dated 31st December, 2018 to argue that after the car running for 10 years the same was sold for an amount of Rs. 50,000/- on 31st December, 2018. The Appellant referred to this tax invoice filed by the Resolution Professional states that the sale proceeds amounting to Rs. 50,000/- came directly to the account of the Corporate Debtor is apparent from the tax invoice. The Appellant is arguing that the Adjudicating Authority did not give finding with regard to the sale price of the car and the Resolution Professional asking for Rs. 13,85,277/- towards sale price of the car was unreasonable. The Appellant claims that the audited balance sheet of the year 2018 shows depreciation of Rs. 12,75,724 as on 31st December, 2018 leaving the book value of the car at Rs. 1,51,926/-. Although the Appellant has referred to only Page 7 of the written-submissions of the Resolution Professional, we find from the copy of the RC (Page 6 of the written-submissions dia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case there is no provision regarding the Car in the Resolution Plan, the Resolution Professional will deal with the asset of the Corporate Debtor in terms of IBC, Rules and Regulations and with directions from the Adjudicating Authority dispose the property and the Appellant would be liable to contribute to the asset of the Corporate Debtor such amounts of loss as Corporate Debtor may have suffered due to such transaction of transfer of Car entered into by the Appellant during pendency of CIRP. 18. We further direct the Resolution Professional to take further action on the basis of the car sale and delivery receipt (Annexure 1, Diary No. 27727) with regard to unaccounted Rs. 25, 000/-. Suitable legal action may be taken moving the Adjudication Authority or in appropriate forum. At the time of closing arguments, it was stated that during pendency of the Appeal Resolution Plan has been approved and now Successful Resolution Applicant is there. It will be open for Resolution Professional to ensure that when benefits under present Orders are realized the same should be applied in terms of Resolution Plan if it has kept provision for the contingencies. Otherwise the benefits should b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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