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TMI Blog2022 (4) TMI 880X X X X Extracts X X X X X X X X Extracts X X X X ..... gs against the corporate debtor with a malicious intent for the purpose other than resolution of insolvency of the corporate debtor could not be proved with materials to the satisfaction of this Bench. It is found from the materials, papers, and submissions of the Transaction Auditor and the RP that the R6 7, Suspended Board of Management/Ex Directors are still not cooperating, as required under the code of the IBC, to the RP for completion of the CIRP in time. The RP in the meantime has filed other two IAs for preferential transactions and fraudulent trading or wrongful trading under the Sections 43 and 66 of IBC respectively. Hence the issues raised relating to the R6 R7 shall be disposed of along with these two IAs separately. There is no much substance left at this time to proceed further in the matter - Petition disposed off. - I.A. No. 37/2021 in CP (IB) No. 03/GB/2020 - - - Dated:- 24-3-2022 - Rohit Kapoor, Member (J) And Prasanta Kumar Mohanty, Member (T) ORDER Prasanta Kumar Mohanty, Member (T) 1. The present Interlocutory Application is filed by Mr. Kamal Agarwal, Resolution Professional of the Corporate Debtor, the Applicant herein under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Meeting of the Committee of Creditors of the Corporate Debtor on 31.03.2021 to update the status and the CoC resolved to liquidate the Corporate Debtor vide agenda item No. 6. An application under Section 33(2) of the Code was filed for liquidation vide filing number 1806122/00053/2021. 2.6 Meanwhile, the RP has also filed an application under Section 45 of the Code seeking restoration of its undervalued intellectual property Trade Mark CONCEPT Educations sold to the related party by the Suspended Directors vide filing No. 1806122/0056/2021. 3. The present state of affairs of the case is that: 3.1 The Suspended Directors are yet to provide all the necessary information and the limited information provided by them are in the process of verification and authentication. The delay in providing the information by the Suspended Directors are apparent from the fact that the provisional balance sheet as on the insolvency commencement date i.e. 26.02.2020 was provided on 25.03.2021 and a consolidated tally data up to the insolvency commencement date along with the Financials of the partnership firm M/s. Potential Concept Educations is yet to be provided. 3.2 The RP is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and on account of their unpaid salary, they filed an application under Section 9 of IBC 2016 which stood admitted as the Corporate Debtor remained ex-parte. The amount of claims filed by these three Respondents comprises of only 3.75% of the total debt admitted by the erstwhile IRP/RP and the details are as under: Sr. No. Name Amount (Rs.) 1) Manish Soni (Respondent No. 1) 3,48,000.00 2) Pankaj Kumar Sahu (Respondent No. 2) 3,00,000.00 3) Vivek Kumar (Respondent No. 3) 3,66,667.00 TOTAL 10,14,667.00 4.3 The Respondent No. 4 is again an Operational Creditor and is a partnership firm represented by Mr. Hemanta Kalita and is a party to the present application as he has alleged that these Respondents No. 1 to 3 are hand in glove with the Suspended Directors of the Corporate Debtor. 4.4 The Respondent No. 5 is the erstwhile IRP/RP against whom the Respondents No. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rectors not to share the same with any other person not entitled to it. 6. In accordance with the direction of this Bench, the Respondents No. 1, 2 and 3 had filed their common replies/written objections to the Application specifically denying all the averments made by the Petitioner here against them. It is submitted that: 6.1 The Respondent 1 was employed with the CD since 2016 as a faculty member for teaching Chemistry. The CD on the other hand employed the faculty on contact basis for one year commencing from March to February and renewed the contract agreement every year. 6.2 For the year commencing from March 2018 and ending on February 2019, the contract was not renewed as the CD had entered into a partnership agreement with another coaching institute namely Potential Group and formed multiple LLPs with them. Further, the newly formed entity started recruiting faculties on the terms and conditions predominantly decided by the management of the Potential Group of Institution. 6.3 The Respondents including other several faculty and lecturers were terminated as a result of these arrangements between the two coaching institutes. This decision of the suspended B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nover more than 10 Crores per annum, but their books of accounts were not maintained. They had not appointed any full time accountant for maintenance of books of accounts, records, statements etc. 6.10 Since Feb 2019, the suspended BoDs had entered into several agreements by forming more than four Limited Liability Partnership, where the suspended BoDs or their relatives are significant stake holders in these sister concerns. It can be concluded that these arrangements by the suspended BoDs were made with the intent to divert the revenue/cash flow of the CD for their personal benefits. 6.11 All these matters were brought into the notice of the RP and also the ex RP for their needful actions. The RP was well aware of all these circumstances but still did not take the appropriate steps as required by the Code. As per the contract, the Respondents are professionals but it is also mentioned in the contract that the Respondents cannot work with any other Educational Institute till the contract ends. The Respondent had no malicious intention for initiation of CIRP as alleged by the Applicant merely based on the ground that his application was admitted ex-parte and based on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the CD and shall not be construed otherwise. 7.7 It was observed that the present RP Mr. Kamal Agarwal was very lenient on taking action against the suspended BoDs and reluctant to act diligently on the information provided upon. Also to note that the suspended BoD are pretty silent on this issue and very least bothered to reply or to co-operate in the CIRP process. 8. The Respondent No. 5 has also filed his submission as under: 8.1 This IA has been filed in gross suppression of material facts pertaining to subject matter; the applicant omitted to bring on record actual course of events; the instant application is not maintainable on the face of it and the applicant has no cause of action to initiate and or proceed against the answering respondent. 8.2 Each and every allegations and or averment contained in the said application is denied as if the same are set out in seriatim and specially traversed. He strongly opposes and denies to have any collusion/arrangement with Respondent No. 4 and aggrieved by his replacement as alleged by the applicant Mr. Kamal Agarwal in Para 17 of the instant I.A., merely on the ground that Respondent No. 5 has raised his observatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cations made by them were not with the intent of value maximization. Had that been their intent, then why would they make so much of noise by marking a cc of e-mails sent to the applicant/RP, to Deputy Registrar NCLAT, Secretary NCLT, Registrar Guwahati, officers of IBBI, Ministry of Corporate Affairs, and then calling the RP and directing the RP to inform them about each and every action taken by the RP in the matter and making all sorts of false accusations against him with an intent to record the conversations and thereafter sending the selective recordings of the conversations to all these authorities. All these acts of respondents clearly indicate their mala fide and malicious intent, iii. It is submitted in para 4 that an application was made to Deputy Commissioner Guwahati for recovery of their dues, without attaching any evidence to that effect and it shows that the respondents are in the habit of wrong forum shopping. Therefore, it cannot be ruled out that the respondents are in fact assisting the Respondents No. 6 7 by showing to the outside world that they are filing complaints against them, but are deliberately filing at wrong forums. It is even not mentioned as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ged under section 65 of the Code will befall upon the initiators of the main petition and not upon him. The applicant RP has not proceeded against the erstwhile IRP/RP. It is specifically stated in Para 13 and Para 23 by the applicant that the respondents No. 1 to 3 have made serious allegations against him and he is only one who would rebut the allegations made against him. 10.4 The contents of Para 10 are again a surprise to the applicant/RP as the allegations against him were levelled by respondents No. 1 to 3 of being hands in glove with the suspended board. However, in his entire reply he has nowhere addressed to the allegations and even rebutted the same. 10.5 In view of the above submissions it is prayed before the Hon'ble Tribunal to: a. Impose penalty upon the initiators of the main petition i.e., respondent No. 1 along with respondent No. 2 3 for initiating the insolvency resolution process for purpose other than resolution of insolvency; b. Impose penalty upon respondent No. 6 7, the suspended directors of the corporate debtor for allowing the commencement of the insolvency proceedings for a mere amount of ₹ 3.48 lakhs only; ORDER ..... 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