9911796707
TMI Blog2022 (2) TMI 251X X X X Extracts X X X X X X X X Extracts X X X X ..... inst the dues of a foreign entity i.e., Matheel Al-Nujoom Group of Industries wherein the applicant Mr. Shameel E.P is a Common Director, since the amount has been remitted by the Corporate Debtor against import through proper banking channel in compliance with the RBI Regulations. The Corporate Debtor has not raised any of the points raised in this application, as the applicant was silent waiving the Corporate Debtor right to file an appeal, if the Corporate Debtor was really aggrieved by the aforesaid admission of the matter - application dismissed. - MA(IBC)/04/KOB/2021 in TIBA/25/KOB/2019 - - - Dated:- 17-1-2022 - Ashok Kumar Borah, Member (J) And Shyam Babu Gautam, Member (T) For the Appellant : S. Ravichandran, PCS For the Respondents : Vijay V. Paul and Vinod P.V., Advocates ORDER Ashok Kumar Borah, Member (J) 1. This Miscellaneous Application has been filed by Mr. Shameel Eramakaveettil Puthiyakath, Suspended Director of the Corporate Debtor (M/s. NUI Pulp and Paper Industries Private Limited under Section 60(5) of the Insolvency and Bankruptcy Code, 2016 read with Rule 11 of the NCLT Rules, 2016 seeking the following reliefs:- a. To direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... produced and relied upon by the Respondent No. 1/Operational Creditor shows that they have made an exaggerated claim by suitably manipulating their records and making adjustments for self-serving purposes alone. Admittedly, the Respondent No. 1/Operational Creditor has stated on affidavit that the invoices referred to in the Swift remittances are not theirs nor are the amounts received by the Operational Creditor through the Swift remittances constitute advance against future supplies. Hence, actually, the following money received by the Respondent No. 1/Operational Creditor under SWIFT remittances ought to have been declared as wrongful gains and are, therefore, liable to be brought back by the Respondent No. 1/Operational Creditor. Details of SWIFT remittances made are as under:- 6. It is also stated that the amount received of USD 2,91,502.20/- has also been appropriated towards Matheel Al Nujoom having different invoice numbers. This was a balance remaining payable for Invoices issued to the Corporate Debtor. Further, it is stated that there has not been any instruction with regard to appropriation of such payments and, therefore, the Corporate Debtor had accordingly r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Debtor for the irreparable losses caused by the Respondent No. 1/Operational Creditor or allow this Applicant/Suspended Director to initiate legal proceedings to make the claim for the compensation by way of damages and further to lift the Corporate Debtor from the rigours of the CIRP. The Applicant/Suspended Director submits that to the extent the claim of the Respondent No. 1/Operational Creditor has been admitted, the same could be marked as disputed and payable after final adjudication of claims and counter claims by this Tribunal. 11. The Applicant/Suspended Director, further stated that under the facts and circumstances this Tribunal may take into consideration of the peculiar facts of the case and impose penalty on the Respondent No. 1/Operational Creditor as per the I B Code for the malicious proceedings initiated by the Respondent No. 1/Operational Creditor against the Corporate Debtor. 12. The 1st Respondent Operational Creditor filed a counter stating that this Miscellaneous Application is vexatious, mischievous, ill-founded and illogical and therefore deserves to be dismissed. They have also raised the maintainability of this application. The applicant is atte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al filed a counter stating that the 1st Respondent has filed a claim of USD 16,74,303.61 with him and after verification of the records of the Corporate Debtor the Resolution Professional has only accepted the claim of USD 1,41,847 out of the total claim of USD 16,74,303.61 which is the only amount due as per the audited financials of the Corporate Debtor. As per the Audited Accounts as on 31/3/2019, the dues payable to the 1st Respondent is ₹ 91,05,994/- and the applicant also admitted that the audited accounts have been finalized even before admission of the Corporate Debtor under CIRP. While admitting the application, this Tribunal relied on the audited accounts and held that the amount payable to Respondent No. 1 is more than the threshold limit of one lakh rupees. 17. It is further stated that the RP has not admitted any amount claimed to be apportioned by the 1st Respondent against the dues of a foreign entity Matheel Al-Nujoom Group of Industries (a Company incorporated in Kingdom of Saudi Arabia) wherein the Applicant/Mr. Shameel E.P is a Common Director, since the amount has been remitted by the Corporate Debtor against import through proper banking channel in com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Matheel Al-Nujoom Group of Industries wherein the applicant Mr. Shameel E.P is a Common Director, since the amount has been remitted by the Corporate Debtor against import through proper banking channel in compliance with the RBI Regulations. If any apportionment is made without authorization that, would amount to violation of Section 10(6) of FEMA and RBI Import Regulations. Therefore, the claim of Respondent No. 1 that the apportioned USD 7,35,827.20 the amount of USD 10,12,207.21 paid by the Corporate Debtor against the four invoices 2017INV02295, 2017INV02294, 2017INV03697 and 2017INV03820 towards the dues of some other related party entity at Kingdom of Saudi Arabia is legally not sustainable and cannot be a part of consideration by the RP. 21. While admission of the matter, during arguments, the Corporate Debtor has not raised any of the points raised in this application, as the applicant was silent waiving the Corporate Debtor right to file an appeal, if the Corporate Debtor was really aggrieved by the aforesaid admission of the matter. Without taking recourse of the remedies available to them, now they have come up with this application to release them from the process ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
