9911796707
TMI Blog2023 (7) TMI 155X X X X Extracts X X X X X X X X Extracts X X X X ..... not be construed to be an Adjudicatory function, keeping in view Regulation 13 of the CIRP Regulations 2016 - The Loan Agreement dated 27/12/2019 is also on the same date as that of the MoU which is said to have been revoked/cancelled by the Appellant. It is significant to mention that this Loan Agreement is silent about the MoU dated 02/08/2019. There is no evidence on record in terms of Statements of Accounts or Auditor s Report that the claim amount of Rs. 15,72,18,489/- has been disbursed pursuant to this Loan Agreement. The contention of the Learned Company Secretary appearing for the Appellant that the Register of Members was never produced before the Adjudicating Authority and therefore no steps could have been taken under Section 59 of the Act, is untenable as they themselves are relying on the letter dated 22/02/2020 in support of their argument that they had come to know that their amount was converted into Equity despite not having signed any Share Transfer Deed, then there are no substantial reasons for not having taken any effective steps under Section 59 of the Act. This Tribunal is of the earnest view that there are no substantial grounds to interfere with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cant maintained in the books of the Corporate Debtor the balance payable is shown as 'NIL' as on 31.03.2020. Hence, we come to the irresistible conclusion that the Applicant is one of the Shareholder of the Corporate Debtor and the Respondent was right in rejecting the claim of the Applicant. 2. The Learned Company Secretary Mr. Gaurav Kumar appearing for the Appellant submitted that the shares were never duly transferred under the eyes of Law and therefore, the Appellants are not Shareholders of the Corporate Debtor; that the Shares alleged to be transferred under the Memorandum of Understanding (MOU) dated 02/08/2019 was never transferred to the Appellant in accordance with Section 56 of the Companies Act, 2013. In support of this contention, the Learned Company Secretary submitted that there were no signed Share Transfer Deeds in Form SH-4, there was no Stamp Duty paid and further that there was no Transfer entry on the reverse side of the Share Certificate. As per Section 88 of Companies Act, 2013 ( the Act ), the transfer of shares ought to be mentioned in the Register of Members maintained by the Company which was not done in this case and therefore, this Trans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the CIRP would commence in a month s time and to ensure that the Appellant does not find a seat in the CoC, the documents were made up to ensure that the colour of the Shareholder is given. The Appellant s claim is around 40 % of the entire claims and if the same is disallowed, then only the Banks and the small Creditors were to be satisfied in order to take this Company out of CIRP and therefore the Promotor has clandestinely manipulated these documents. It is submitted that on receiving the letter dated, 27/01/2020, sent by the Corporate Debtor, demanding the Appellant to release an amount to Rs. 16,00,00,000/- (Rupees Sixteen Crores Only), the Appellant had requested the Promoters to give a reasonable justification. It is also recorded by the Adjudicating Authority that the Respondents did not produce Register of Members of the Company and therefore the Appellant could not have taken recourse to Section 59 of the Act as the Register itself was kept in the dark. 5. It is submitted by the Learned Company Secretary that the only Agreement subsisting between the Appellant and the Corporate Debtor is the Loan Agreement subsequent to the cancellation of the MoU. The Loan Agr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as made at the back side of the Share Certificate and the same was handed over to the Partners of the Appellant. During the course of Hearing , it was also submitted by the Appellant that he was in possession of the Share Certificate. As regards the Loan Agreement dated 27/12/2019, it is submitted that the said Agreement was entered into for the purpose of availing a loan in future for a sum of Rs. 16,00,00,000/- (Rupees Sixteen Crores Only) and not for a sum already transferred to the Corporate Debtor Company. The Appellant had infused a sum of Rs. 15,47,23,307/- (Rupees Fifteen Crores Forty Seven Lakhs Twenty Three Thousand Three Hundred and Seven Only) in the Corporate Debtor Company over a period of five months from August 2019 to December 2019 as per the terms of the MoU dated 02/08/2019. It is submitted that the records of the Registrar of Companies (RoC), Chennai evidence that the Shares have been transferred in the names of the Partners of the Appellant. Having participated actively in the day to day functioning of the decision-making process of the Company and being a Shareholder, any transaction between the Appellant and the Corporate Debtor cannot qualify as Financia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Meetings and this date i.e., 27/09/2019 does not figure and the number of Board Meetings conducted during that year . Form MGT-7 filed by the Company with the RoC, read with the Auditor s Report establishes that no such Board Meeting had taken place on 27/09/2019. Therefore, this Tribunal is of the considered view that there is no documentary evidence to establish that a Board Meeting had taken place on 27/09/2019 and consequently the MoU was revoked on 27/11/2019. 11. Now this Tribunal addresses to the contention of the Learned Company Secretary that the shares were never transferred to the Appellant herein and that the prerequisites for effective transfer of shares as held by this Tribunal in M/s Vintage Hotels Private Limited Vs. Ahamed Nizar Moideen Kunhi Kunhimahin (Supra) has not been adhered to. At the outset, the Appellant has admitted that the original Share Certificates are in his possession. A perusal of the Share Certificate No. 36, whereby 18,60,000 shares of Rs. 100/- (Rupees Hundred only) is figured, shows that the Share Certificate was received by Mr. Manish Shah and there is a clear endorsement dated 17/12/2019. As the receipt of the Share Transfer Certif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt based on the documentary evidence on hand. The duty of the RP is to collect and collate the claims and a mere rejection of the Claim by the RP cannot be construed to be an Adjudicatory function , keeping in view Regulation 13 of the CIRP Regulations 2016, which reads as follows: 13. Verification of claims:- (1) The interim resolution professional or the solution professional, as the case may be, shall verify every claim, as on the insolvency commencement date, within seven days from the last date of the receipt of the claims, and thereupon maintain a list of creditors containing names of creditors along with the amount claimed by them, the amount of their claims admitted and the security interest, if any, in respect of such claims, and update it. (2) The list of creditors shall be- (a) available for inspection by the persons who submitted proofs of claim; (b) available for inspection by members, partners, directors and guarantors of the corporate debtor [or their authorised representatives]; (c) displayed on the website, if any, of the corporate debtor, (d) filed with the Adjudicating Authority; and (e) presented at the first meeting o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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