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TMI Blog2022 (7) TMI 1122X X X X Extracts X X X X X X X X Extracts X X X X ..... application disposed off. - I.A (IBC) No.69 /KB/2021 In C.P. (IB) No. 932/KB/2018 - - - Dated:- 18-7-2022 - Mr. Rohit Kapoor, Member (Judicial) And Mr. Harish Chander Suri, Member (Technical) For Corporate Debtor : Mr. Joy Saha , Sr. Adv. Mr. Isshan Sahu, Adv. Mr. D.Basu, Adv. ORDER PER : Harish Chander Suri, Member (Technical): 1. This Court convened through video conferencing. 2. The Interlocutory Application(IBC)No. 69/KB/ 2021 has been filed by the Resolution Professional appointed in the CIRP of M/s Madhusala Drinks Private Limited vide order dated 26th August, 2019 and later on confirmed by the CoC on 25th September, 2019. 3. It is submitted that on the application being admitted by this Adjudicating Authority in the petition under Section 7 of IBC filed by the State Bank of India, one of the Financial Creditors, during the performance of duties by this Applicant/Resolution Professional, he contacted the erstwhile Directors of the Corporate Debtor and intimated them of the initiation of the CIRP and requested them to provide him necessary information and records of the Corporate Debtor. 4. The applicant, in the first meeting of the CoC held o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 66 of the IBC, 2016 read with Rule 11 of the NCLT Rules, 2016. 8. The Applicant has submitted that on the perusal of the Transaction Audit Report along with its annexures, it is evident that an amount of Rs.72.45 crores has been identified as fraudulent transactions under section 66 of the IBC, 2016. 9. The Applicant has further submitted that following are the instances of fraudulent transactions as defined under section 66 of the IBC Code, which is supported by the transaction audit report. i. Fixed Assets Fixed Assets shown as stolen in the FIR and declaring that there are no fixed assets except Land after the Fire was broken out, is inappropriate and not justified. The fixed assets are presumed to be sold may be intentionally done by the management without passing it through books of accounts. Even the management was reckless to leave the asset as is and where is basis without taking concern of the employees, financial institutions, lenders, outsiders etc. who may be directly or indirectly associated with the company. ii. Inventories Due to non submission of any evidence in support to the existence of inventories, the value of inventor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame in their books of accounts and or balance sheet. Claim has also been filed by the West Bengal Sales Tax Department, running into cores of rupees.(Annexure-H) 10. It is submitted that even though all relevant data and documents were not provided by the Corporate Debtor, it is clear that the transactions were fraudulent transactions to ensure that no funds were available with the corporate debtor which could be appropriated by the Creditors to satisfy their outstanding dues and thus, it is humbly submitted that the transactions were carried out just to defraud creditors of the corporate debtor. The applicant submits that all these transactions ought to be reversed so as to reflect the correct balance in the corporate debtor s account as on the CIRP initiation date. 11. The applicant further submits that the aforesaid transactions are clearly fraudulent in terms of Section 66 of the IBC,2016. In view of the above, it is submitted that these transactions are clearly within the definition of transactions to defraud creditors in terms of Section 66 of the IBC, 2016 and hence, the present application is being filed to reverse the effect of such transactions and seek orders in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orporate Debtor. ii. That this Adjudicating Authority be pleased to pass an order directing the suspended board of directors being Respondents No. 1 to 5 make such contributions to the assets of the corporate debtor as this Adjudicating Authority may deem fit; iii. That this Adjudicating Authority may be pleased to pass an order or orders as may be deemed necessary for investigation into the affairs of the corporate debtor. iv. For such further and other reliefs as this Adjudicating Authority may deem fit and proper in the facts and circumstances of this case . 16. While going through the copy of the complaint stated to have been filed by the Corporate Debtor on 1st July ,2017 to the Inspector-In-charge Budge Budge Police Station, Budge Budge, South 24 Parganas, the subject is Complaint for theft and /or burglary at the IMFL plant of the company at Plot No.S-1 Budge Budge Industrial Estate, Pujali, Kolkata-700138 and fire caused at the plant on 27th June, 2017, causing huge loss to the stock and plant premises . 17. The complainant who is one of the employees of the group company of the Corporate Debtor has lodged this FIR and submitted that; .. .. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yed. There is a clear cut misrepresentation and concealment of facts in the F.I.R., which gives rise to presumption that the suspended Board of Directors of the Corporate Debtor had intentionally lodged this false F.I.R. to place on record that everything has been destroyed by the fire in the premises which left only the vacant land belonging to the Corporate Debtor. 19. Moreover, in the subject of the complaint, the respondents have tried to cover all types of points starting from theft and /or burglary and subsequently fire causing huge loss to the stock/plant and machinery. 20. It is strange that on the one hand, the suspended Directors have neither given any record, books of accounts or details of the bank accounts to enable the RP to get all the details verified, and on other, has tried to place a copy of the F.I.R. on record to wash their hands off all their faults and /or offenses under the law. The suspended directors have not been able to give any details as to how and when the security agency had been engaged and by whom, because there was no record to show any payment having been made to the security agency which was allegedly guarding the premises nor has any docu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the respondents herein, the applicant has failed and neglected to make any enquiries with the Excise Department in this regard despite being well and fully aware that the Excise Department through the Deputy Excise Collector, was at all material point of time exercising rights of supervision and control over the said facility. In this regard, it is relevant to notice that the corporate debtor duly made payment of the fees and charges of the Excise Department for posting it s personal/ police authorities at the factory premises of the corporate debtor. The relevant documents with regard to payment to the Excise authorities for posting it s personnel at the said premises were, at all times, reflected in the books of accounts of the corporate debtor. ii. It will further appear from the claim that orders of attachment were issued by the Tax Recovery Officer in respect of the premises belonging to the corporate debtor over which the said facility is situated. By such order of attachment, the Commissioner of Commercial Taxes, Government of West Bengal had prohibited and restrained the Corporate Debtor for transferring or charging the property attached. iii. In the li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Respondents denied that the value of inventories as recorded in the books of account for the year ending 31st March, 2014 is untrue or fake. It is stated that the nonavailability of records on account of incident of fire that occurred in the said premises on 27th July, 2016 as has been recorded in the police complaint and the closure report submitted by Budge Budge Police Station. It is stated that police has also made an arrest in connection with the said complaint and it is clearly apparent that no wrongdoing is suspected in connection with occurrence of fire and that electrical fault is attributed to because of fire.No wrongdoing has been suspected by the police on the part of the erstwhile management. It is further submitted by the respondents that the transaction audit report of P.D.Rungta Co. has admitted that as per the FIR dated 1st July, 2017, the said premises under the possession of the State Bank of India since 20th January, 2017 which is prior to the incident of fire at the said premises. 28. Similarly, as regards the Trade Receivables, the Respondents submitted that pursuant to a garnishee order dated 9th November, 2015 issued by the West Bengal Sales Tax Aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... approx., Rs.1277,82,69,362/- which is the huge loss of the revenue and exchequer, and there is a possibility that the non-provision of all the documents and the records were done intentionally to escape from the fraudulent and avoidance transaction which was required to be filed as per the IBC. It is stated that the physical possession was also always with the respondents and the respondent was duty bound to maintain/safeguard their asset of the corporate debtor towards the beneficial interest of all the stakeholders. 34. It is stated that innumerable inventories were lying there and based on the last available financial statement, no document or record was ever produced to demonstrate the consumption of the said factory and in the reply itself the respondents had even admitted that factory was in their possession up to the financial year 2016, even if that the contention is accepted the movement of the inventories since the Financial year 2013 -2014 was intentionally never produced to the applicant. It is stated that no record relating to the receivable by the Corporate Debtor has never been produced. It is submitted that the accounts and records of tally data whether in the s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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