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TMI Blog2022 (9) TMI 1294X X X X Extracts X X X X X X X X Extracts X X X X ..... IV) in I.A. No. 1179/(ND)/2020 in Company Petition No. (IB)/114/(ND)/2018. By the impugned order, the Adjudicating Authority had allowed the application filed by Resolution Professional (present Respondent) under Sections 60(5) and 25 of the IBC directing the present Appellants to jointly and severally pay the Corporate Debtor the principal amount outstanding alongwith interest as claimed by the Resolution Professional. Aggrieved by this, the present appeal has been preferred. 2. The brief facts and genesis of the case is that a Section 9 application under IBC was admitted by the Adjudicating Authority against M/s Saubhagya Ornaments Pvt. Ltd./Corporate Debtor on 13.03.2019 on an application filed by M/s. SRS Ltd./Operational Creditor. Ms. Shalu Khanna, the present Respondent was appointed as Interim Resolution Professional ('IRP' in short) and later confirmed as Resolution Professional ('RP' in short). The RP/Respondent during the ongoing Corporate Insolvency Resolution Process ('CIRP' in short) on examining the records and financial statement of the Corporate Debtor found that an amount of Rs. 50 lakhs was outstanding for payment from Fusebase Eltoro Pvt. Ltd./Appellant No.1 Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing under the instructions of certain employees of SRS Group. However, they had referred us the names of employees of SRS Group who could provide us the information or documents...." 6. It has also been submitted that Shri Anil Jindal, Whole Time Director and Chairman of M/s SRS Ltd had given a statement on 06.10.2020 before the Serious Fraud Investigation Office ('SFIO' in short) admitting that he had appointed his known persons as Directors in the Corporate Debtor and that the bank operations of the Corporate Debtor were looked after by the employees of M/s. SRS Ltd. It has also been stated that Ms. Shweta Marwah, the Company Secretary of M/s. SRS Ltd. had submitted a similar statement on 04.04.2019 to SFIO that she was made part of the Secretariat Department at the instance of Shri Anil Jindal. Similar admission has been made on 05.04.2019 before SFIO by Mr. Arun Dutt stating that he was appointed as Director in the Corporate Debtor on instructions of Anil Jindal. It has also been added that Arun Dutt made a similar statement before Enforcement Directorate on 30.05.2019. Similarly on 18.07.2019, another Director of Corporate Debtor, Shri Anil Mittal admitted before the Enforcem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and audited financials of the Corporate Debtor in the financial year ending 2016-2017. Additionally, Bank Statement has also been referred to by the Learned Counsel for the Respondent to establish the transfer of Rs. 50 lakhs from the Bank Account of the Corporate Debtor to the Appellant No. 1 Company. Based on the Bank Statements, financial records and ledger statements of the Corporate Debtor, the Learned Counsel for the Respondent contended that notwithstanding the absence of any Loan Agreement, the alleged transaction of Rs. 50 lakhs is clearly established between the Corporate Debtor and Appellant No. 1 Company and that this transaction has no nexus with the share purchase transaction between the Appellant No. 1 Company and M/s. SRS Limited. It has also been stated that a Corporate Debtor, by virtue of the provisions of the Companies Act, 2013 can always advance loan to another Company even if it is not an NBFC. 11. Learned Counsel for the Respondent has also refuted the submission of the Appellants that the Corporate Debtor is one of the group company of M/s. SRS Ltd. It has also been stated that Mr. Anil Jindal, Director of SRS Ltd. was neither the Director nor the shareh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 1 company on 17.10.2019 has admitted and acknowledged to the RP on behalf of Appellant No. 1 company as at pages 194-195 of the APB that it received Rs. 50 lakhs from the Corporate Debtor while adding the caveat that this amount was used by Appellant No. 1 company against the sale of shares of their other company, M/s Hotline CPT Ltd to M/s SRS Limited. This makes it abundantly clear that the Appellant No. 1 Company received Rs.50 lakhs from the Corporate Debtor by their own admission. 16. This brings us to the concomitant aspect as to whether the outstanding payment was actually repaid by the Appellant No. 1 Company to the Corporate Debtor. We have noticed that the RP/Respondent wrote to Appellant No. 3 on 22.10.2019 to provide relevant documents, if any, including instructions given by Corporate Debtor to the Appellant No. 1 company for using the advance of Rs. 50 lakhs to issue shares to M/s SRS Ltd. Appellant No. 3 on 06.11.2019 clarified the matter to the RP/Respondent by sending the SPA dated 10.03.2016 as signed between Appellant No.1 company and SRS Ltd. to which the RP informed Appellant No. 3 on 07.11.2019 that the SPA does not provide any evidence that the Corporat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irectorate that the Corporate Debtor and M/s SRS Ltd. are related parties, it is not within the remit of this Tribunal to comment on the findings of other investigating agencies and we therefore choose not to make any comments. Suffice to say, the Appellants have clearly failed to submit any authentic legal document/certificate/proof which can unimpeachably establish the fact that the Corporate Debtor is managed and promoted by the M/s SRS Ltd. 20. This brings us to the second point which needs determination and that is whether the recoverable amount of Rs. 50 lakhs is barred by limitation. It has been contended by the Learned Counsel for the Appellants that since the claim pertains to 18.02.2016 being the date of transfer of the said funds, the three year limitation expires on 17.02.2019 and hence the claim is liable to be rejected. From the material on record, there is no quarrel on the fact that the Corporate Debtor had given a loan in the nature of an advance to the Appellant No. 1 company. It is also not in dispute that the Appellant No. 1 company had not yet paid back the same amount directly into the Corporate Debtor's accounts and therefore remains outstanding and recovera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Authority is no doubt entitled to lift the veil of the corporate entity but in doing so must delineate the reasons for piercing the corporate veil and show as to how and to what extent the individual members are liable. This not having been done by the Adjudicating Authority, we are of the considered opinion that the outstanding amount alongwith interest is recoverable from Appellant No. 1 company and not jointly and severally at this stage. 22. From the aforesaid discussion, we are of the considered opinion, that the Adjudicating Authority has not committed any error in holding that an outstanding principal amount of Rs. 50 lakhs along with 18% interest is due and recoverable by the Resolution Professional and to that extent affirm the impugned order. However, we hold that this amount alongwith interest is recoverable only from Appellant No. 1 company and therefore set aside that part of the impugned order which held that this amount is jointly and severally recoverable from Appellants no. 1 to 3. The Appellant No. 1 company is hereby directed to entirely pay the aforesaid amount alongwith interest as claimed by the Resolution Professional/Respondent within four weeks from the da ..... 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