9911796707
TMI Blog2022 (7) TMI 1121X X X X Extracts X X X X X X X X Extracts X X X X ..... eeds to be further investigated. The entire transaction as narrated in the Section 7 application is plainly imaginary, concocted and fraudulent. The CD does not appear to have had any genuine liability towards the alleged FC and the entire documentation has evidently been prepared by the alleged FC in collusion with Videocon Group entities. The alleged documents disclosed in the Supplementary Affidavit of the alleged FC, far from helping its case, further demonstrate the fraudulent nature of the documents - the alleged FC is guilty of practicing and committing fraud on this Tribunal and therefore, as per Section 65 of the Code, penalty of Rs.50 lakh is imposed on the alleged FC and the CIRP stands vitiated and terminated due to the fraud committed. In any event, even apart from the aspect of fraud, the Section 7 petition was not maintainable due to the prohibition in Section 10A of the Code. Application disposed off. - I.A (IBC) No.907 /KB/2021 In C.P. (IB) No. 140/KB/2021 - - - Dated:- 18-7-2022 - Mr. Rohit Kapoor , Member ( Judicial ) And Mr. Harish Chander Suri , Member ( Technical ) For IRP Mr. Krishnendu Datta, Adv. Mr. R.K.Gupta, Adv. Ms.Swaralipi Deb Roy, Adv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor and the management and control of the Corporate Debtor would be conducted jointly and equally by the two. The day to day affairs and management would be looked after by two representatives or directors , one each to be nominated by each of the groups. 6. Clause 13 of the shareholders agreement also explicitly provided that decisions pertaining to borrowing and lending shall be taken jointly by both the parties. Infinity Finance Ltd. was merged with the Applicant by an order dated December 12, 2017 passed by the National Company Law Tribunal, Kolkata Bench in C.P.(CAA) No.396/KB/2017. By virtue thereof, the Applicant held 50% shareholding in the Corporate Debtor. 7. It is further submitted that the business of the Corporate Debtor did not fructify into anything material though steps had been taken to enter into an agreement with Videocon Realty and Infrastructure Limited for development of an electronic and biotech park a leasehold property in Jalpaiguri. No board meetings or general meetings of the Corporate Debtor were convened or held after March 31, 2017 respectively and no statutory returns, forms or documents have been filed after 2016-17. The applicant has enclosed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n receivable from Quadrant (Quadrant loan receivable) was thereafter allegedly assigned by the Infotel Group to a Videocon Group entity, Domebell Electronics India Private Limited (Domebell) in the year 2009. It further appears to be the R-1 s case in the application that Domebell had thereafter entered into a novation agreement with Hyundai Electronics India Limited (Hyundai) in May, 2018 for further assignment of the Quadrant loan receivable in favour of Hyundai and that Hyundai had thereafter purported to assign the same in favour of R-1 herein on November 1, 2019. 12. The applicant has further submits that Domebell, Hyundai and Electroparts (Respondent No.1 ) are all either part of the Videocon Group (the flagship company of the group being Videocon Industries Limited, one of the joint venture partners of the Corporate Debtor and/or inextricably interlinked and connected to the Videocon Group. 13. The applicant has submits that Quadrant, which is a listed entity on BSE, in its Annual Report for 2019-20 has disclosed that its promoters are Quadrant Enterprises Private Limited and Tekcare India Private Limited. These two Directors of Quadrant Enterprises Private Limited and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... firmations. There was nobody who had authority to represent the Corporate Debtor for any purpose after the resignation of Ajay Kumar Jalan in June, 2019 and any alleged balance confirmations relied on by R-1 are procured and fabricated by fraudulent means. In paragraph 4(g) of the order dated September 14, 2021, there is a reference to balance confirmation dated April 1, 2020, which is an impossibility since according to R-1, the Corporate Debtor became involved as the alleged incoming lender only on June 1, 2020. 19. The alleged claims of R-1 forming subject matter of the Section 7 application could not have been the basis for filing of the Section 7 application due to the prohibition contained in Section 10A of IBC. Even assuming without admitting that any agreement was executed between R-1 and Corporate Debtor on June 1, 2020 and the default was allegedly committed by Corporate Debtor on December 15, 2020 as claimed, no claim on the basis of such alleged default could form the subject matter of any application under Section 7 of IBC. The Section 7 application was prohibited by Section 10A and the same is a nullity. Case ref: Ramesh Kymal v. Siemens Gamesa Renewable Pow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pg. 195). It also appears from the order that the Corporate Debtor had purported to file a reply affidavit (unauthorizedly and by the said Ashwini Kumar, who is an unknown and possibly fictitious person) admitting the entire alleged liability. This is most shocking since there was no direction to file any Reply and it is absurd to suggest that a Corporate Debtor having no defence to a claim will promptly come forward and file a reply and invite a CIRP order to be passed against itself. It is submitted that all the aforesaid facts demonstrate the egregious and blatant fraud practiced on this Tribunal. Supplementary Affidavit filed by the Financial Creditor : 22. The alleged board resolution of VRIL (a third party) dated September 28, 2021 has evidently been procured as an afterthought. The development agreement between VRIL and the alleged corporate debtor never translated into anything material and the allegations in the body of the purported resolution that there is hope of development of the project is totally baseless and misconceived. The purported settlement proposal as recorded in the alleged resolution is deliberately cryptic and vague. On the one hand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Creditor at Ahmednagar which are at more than 150 kilometres distance from each other. 26. It is submitted that as to exhibit G (page 13) being the alleged consent terms, the alleged Financial Creditor has forged and fabricated the said document. At the outset, it is reiterated that the corporate debtor has had no director since June, 2019 and thus, there is no person who is or could have been authorized to enter into any such settlement or to execute any consent terms. There is also no question of acknowledging any debt by the alleged corporate debtor for the reasons more fully stated in I.A.(IB) No.907/KB/2021. Notably, though the alleged consent terms are shown to be affirmed and executed on 06.10.2021, there is a reference to cheque dated 01.10.2021 under agreed schedule of payment. This goes to show that there is no genuine or bona fide settlement at all (without prejudice to the fact that the alleged corporate debtor could not be represented by anybody for lack of authority). Shockingly, the alleged corporate debtor has also agreed to be liable to pay cheque bouncing bank charges . Furthermore, the whole purport of the alleged consent terms is totally contradictory to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... well as the Supplementary Affidavit was done by the Financial Creditor on the Corporate Debtor on a fake e-mail ID [email protected]. MCA Master Data annexed on pg. 25-26 of the Section 7 Application shows the registered e-mail ID of the Corporate Debtor as [email protected]. 3. Alleged Novation Agreement on pg. 35-41 of the Section 7 Application not notarised 4. Vakalatnama issued by Mr. Rajkumar Nandlal Dhoot, Personal Guarantor to Mr. Soumik Ghosal, Advocate. There is no Vakalatnama of the Corporate Debtor and in any case, as stated above, CD had no Director or other authorized person who could have issued any Vakalatnama. JUDGMENTS RELIED UPON BY THE APPLICANT 1. Beacon Trusteeship Limited v. Earthcon Infracon (P) Ltd., 2020 SCC OnLine SC 1233 : Relevant paragraphs - 7, 8 and 9 2. Ramesh Kymal v. Siemens Gamesa Renewable Power (P) Ltd., (2021) 3 SCC 224 dated 9.2.2021 29. It is submitted that the alleged Financial Creditor be held guilty of practising and committing fraud on this Tribunal and as per Section 65 of the Code, maximum penalty be imposed on the alleged FC and the CIRP be terminated on such grounds. 30. It is submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tition and initiation of CIRP based thereon by practicing fraud on the Tribunal. The story of settlement also clearly appears to be an afterthought. d) Apart from the consequences under Section 65 of the Code, by reason of which the CIRP stands vitiated and terminated and penalty imposed on the alleged Financial Creditor as stated above, in view of the glaringly fraudulent actions of the alleged Financial Creditor as discussed above, it appears that the same would have far reaching implications going even beyond this case and therefore, it would be proper for a full investigation to be conducted into the transaction set up by the alleged Financial Creditor in the Section 7 petition. In view of the same, the Registry of this Tribunal is directed to send a copy of this order to the Secretary, Ministry of Corporate Affairs, Central Government for further action at their end. 33. With the aforesaid directions, IA No. 907/KB/2021 is disposed of. 34. Certified copy of the order may be issued to all the concerned parties, if applied for, upon compliance with all requisite formalities. Order signed on this, the 18th day of July, 2022 - - TaxTMI - TMITax - Insolvency & Bank ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
