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TMI Blog2022 (9) TMI 1219X X X X Extracts X X X X X X X X Extracts X X X X ..... x-Director of the Corporate Debtor and erred in not verifying the claim of the Appellant. The order passed by the Adjudicating Authority is unsustainable and deserved to be set aside - appeal allowed - decided in favor of appellant. - Company Appeal (AT) (Insolvency) No. 580 of 2022 - - - Dated:- 19-9-2022 - [ Justice Ashok Bhushan ] Chairperson , [ Justice M. Satyanarayana Murthy ] Member ( Judicial ) And [ Barun Mitra ] Member ( Technical ) For the Appellant : Mr. Ramji Srinivasan , Sr. Advocate with Mr. Vishnu Shriram , Ms. Rajshree Chowdhury , Ms. Mesha Dugar , Ms. Raveena Rai and Ms. Shruti Pandey , Advocates For the Respondents : Ms. Natasha Dhruman Shah , Advocate JUDGMENT ASHOK BHUSHAN , J. This Appeal has been filed against the order dated 21.04.2022 passed by the Adjudicating Authority (National Company Law Tribunal), Mumbai Bench, Court No.5 dismissing I.A. No. 182 of 2022 filed by the Appellant praying for admission of its claim and disposing of I.A. No. 308 of 2022 filed by the Resolution Professional for adjudicating of the claim of the Appellant. Aggrieved by the order dated 21.04.2022, this Appeal has been filed. The brief facts of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (vii) Both the I.As were heard together and by order dated 18.02.2022, the Adjudicating Authority expended the scope of Transaction Audit. Transaction Audit Report dated 09.03.2022 was given to the Appellant. (viii) The Adjudicating Authority by the impugned order rejected I.A. No. 182 of 2022 and accordingly disposed of I.A. No. 308 of 2022. Aggrieved by which order this Appeal has been filed. 2. Shri Ramji Srinivasan, learned senior counsel appearing for the Appellant challenging the impugned order contends that the Adjudicating Authority erred in rejecting the claim of the Appellant on a wrong premise that the loan of Rs.32.50 crore was discharged by the sister concern Rite Developers Pvt. Ltd. (RDPL), hence, no amount is due on the Corporate Debtor to be paid to the Appellant. It is submitted that the loan due and payable by the Corporate Debtor to the Appellant was never discharged and the plea taken by the Suspended Director of the Corporate Debtor as well as the Resolution Professional was not based on any cogent material. The Adjudicating Authority relied on the Transaction Audit Report dated 09.03.2022 which Transaction Audit Report had recorded conclusio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Debtor is utilized for the project for which the amount was sanctioned. The Corporate Debtor siphoned the amount and transferred substantial amount to the RDPL of about Rs.23 Crores which could not have been possible if an Escrow Account was insisted. It is submitted that disbursement of amount of Rs.9.50 Crore have been even after date of NPA. The amount of Rs.9.50 Crore which was disbursed in April, 2019 was allowed to be transferred in the account of Sameer Dedia, the Director of the Corporate Debtor and allied group of companies from which the amount was used to settle the claim against RDPL. Learned counsel for the Respondent further submits that the entire transaction was collusive transaction and application filed by the Resolution Professional in the CIRP against the DHFL for avoiding the transaction is still pending consideration. It is submitted that the Corporate Debtor vide letter dated 27.07.2020 requested the RDPL to assist them in repaying DHFL loan of Rs.32.20 Crore. Further reliance has been laid on letter dated 18.02.2021 issued by RDPL to the Corporate Debtor informing that the credit amount of Rs.38,51,98,790/- which is laying in the account of DHFL can be adj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority in its long order has noted contentions of the parties, date and events, the Balance Sheet for the year 2019-20 of the Corporate Debtor and the correspondence vide letter dated 27.07.2020 and 18.01.2021, as noted above, but the conclusions recorded by the Adjudicating Authority are contained in only three paras i.e. Paras 59, 60 and 61, which are to the following effect: 59. This bench notes that the Resolution Professional under section 18 of the Code is not empowered to adjudicate the claim of the Applicant herein and is bound to collate the claims on the basis of the available documents. The internal correspondence between the Corporate Debtor and the RDPL demonstrate that the outstanding loan of DHFL has been repaid by RDPL and consequently, it can be seen that the balance sheet for the year 31.03.2021 does not record the outstanding liability of DHFL. 60. Be that as it may, the series of correspondence and exchange of letters between the Corporate Debtor and its sister concern RDPL establish the fact that RDPL has provided financial assistance to the Corporate Debtor and consequently, the amounts lying in the account of DHFL were adjusted towards the repaym ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Rupees Thirty Eight Crores Fifty One Lacs Ninety Eight Thousand Seven Hundred and Ninety only) with DHFL can be adjusted unconditionally towards the loan amount availed by you Rs.32,52,00,000/-/- (Rupees Thirty-Two Crore Fifty Lacs only) and acknowledge the longterm debt in accounts accordingly. Giving you the details of credit lying with DHFL Account as follows for your ready reference. Beneficiary DHFL Account 914020017664947 RDPL Account 0492102000011459 Date of Transaction 19th November, 2018 Transaction Details NEFT (UTR) IBKL181119216236 Amount Rs. 38,51,98,790/- (Rupees Thirty Eight Crores Fifty One Lacs Ninety Eight Thousand Seven Hundred and Ninety only) For any other query or assistance please contact us. Thanking you. Yours truly For RITE DEVELOPERS PRIVATE LIMITED Director. 10. The letter dated 18.02.2021 which was written by RDPL intimated that their credit amount Rs.38,51,98,790/- is with DHFL which can be adjusted towards the loa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance Sheet of the year 31.03.2021. Para 53 of the order is as follows: 53. However, the unaudited balance sheet of the year did not reflect the long term borrowing of DHFL. The balance sheet for the year 31st March, 2021 is reproduced below: ANURADHA REAL ESTATE DEVELOPERS PVT. LTD. Notes forming part of Financial Statements for the period ended 31st March 2021 Note 2: Reserves and Surplus Reserves and Surplus As at March 31, 2021 Amount in Rs. As at March 31, 2020 Amount in Rs. a. (+) (+) (-) Surplus in Profit Loss Account Opening balance Net Profit/(Net Loss) For the current year Excess provision of Income Tax of earlier years Transfer to Reserves 232,970 326,052 (93,982) - Closing Balance 232,970 232,970 Total 232,970 232,970 Note ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n was sanctioned to RDPL has been annexed as part of Volume III of the appeal paper book. The aforesaid account is a loan account through which loan sanctioned to the RDPL. Total disbursement of the loan is Rs.758,51,98,790/-. In the column of disbursement, loan is claimed to be disbursed on seven dates. Last date of disbursement as reflected in the account is 19.11.2018 for an amount of Rs.38,51,98,790/-. The account further reflects that the due date of PEMI/EMI is Tenth of every month. Two entries of 19.11.2018 on which much reliance is placed are extracted as follows: Date VOUCH ER Account Head Receipt No. Chq no. Chq Dt. Clear Dt. Dr. Amt Cr. Amt 29/09 /2018 00133 858 JV PEMI Received IBT 4398 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount in other account as payment from DHFL Bank, which clearly indicates that the amount of Rs.38,51,98,790/- was received in the Bank Account of RDPL and is not laying in credit with the DHFL which can be adjusted as referred to in the letter dated 18.02.2021. The above Statement of Accounts which Statement is filed by the Respondent themselves prove that the amount of Rs.38,51,98,790/- is the amount paid by the RDPL to DHFL and same amount was received back as loan amount and the transactions was complete and exhausted and said amount cannot be said to be available to the RDPL to discharge the debt of the Corporate Debtor being payable by DHFL to Corporate Debtor. 19. Learned counsel for the Respondent in support of her submission that entire transaction between the Appellant, Corporate Debtor and RDPL was collusive, hence, the claim was rightly not admitted, has placed reliance on the judgment of Hon ble Supreme Court in (2021) 3 SCC 475, Phoenix ARC Private Limited vs. Spade Financial Services Limited Ors. . Reliance has been placed on Para 48 of the judgment where following has been laid down:- 48. The above discussion shows that money advanced as debt should be in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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