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TMI Blog2021 (10) TMI 1458X X X X Extracts X X X X X X X X Extracts X X X X ..... management of the Company. Directors were very well in charge of the corporate debtor and its affairs till the IRP taken over charge. Considering the facts of the case it is not inclined to impose any punishment. Directors are directed to deposit Rs. 1,60,000/- self withdrawn money plus Rs. 1,00,000/- as fine in the account of the Corporate Debtor.
Dated the 5th day of October, 2021. X X X X Extracts X X X X X X X X Extracts X X X X ..... 3' to the rejoinder. The Hon'ble Supreme Court expressly noted that it was not inclined to interfere with the order passed by Hon'ble NCLAT. 6. This order was taken on appeal to the Hon'ble Supreme Court which order attached as 'Exhibit 3' to the rejoinder. The Hon'ble Supreme Court expressly noted that it was not inclined to interfere with the order passed by Hon'ble NCLAT. 7. At the hearing before NCLAT on 12th March 2020 it was argued by the authorized withdrawals were for running of the business. Infact in para 6, para 8, para 22 and para 23 of the Order attached of 'Exhibit 4' from Page No. 19 the Hon'ble Court observes as under: 6. Learned Counsel for the Appellant and Mr. Deepak Daga (Respondents in I.A.), fairly states that as per the order dated 23.10.2019, the authorised person could sign the Bank Cheques but only after the approval of the IRP, but approval was not taken while making the withdrawals. Learned Counsel is trying to refer to the Affidavits filed to state that the withdrawals were justified withdrawals for making payments to the suppliers, workmen and electricity bills to keep Corporate Debtor as going concern. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time to comply undertaking is not honest and appears to have been filed to create grounds of defence to further abuse process to kill time. The I.A. is rejected. The acts of the two Directors have obstructed the proceedings of CIRP, the proceedings before Adjudicating Authority and this Tribunal. The acts prima facie disclose serious Contempt, violating mandate of law of IBC applied by Orders of Adjudicating Authority and this Tribunal and breach of undertaking given on oath, actionable as NCLT established under the Companies Act, 2013 acts as Adjudicating Authority and this Tribunal is empowered under Section 425 of Companies Act, 2013 read with enabling provisions to take action. 23. At the same time, considering record which shows that Appellant violated Orders of Adjudicating Authority and this Tribunal and looking to the apparent default on record where undertakings were given and not honoured, we find that the Appeal deserves to be dismissed in default. We dismiss the Appeal in default while permitting the IRP to move the Adjudicating Authority or any other authorities including Police authorities to pursue the matter with regard to money illegally withdrawn from the accoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... violation of moratorium. 12. Respondents infused their own personal funds of Rs. 19,75,000/-. The most important fact which has been mischievously suppressed by the RP is that it was the Respondents who had infused their own personal funds amounting to Rs. 19,75,000/- in the Corporate Debtor on 16.08.2019 and then out of those funds, the Corporate Debtor made payments to employees, rent, security agency and to East West Travel. [See averments at 5.2 & 5.3 of Reply and bank account statement at page 114 of IA which reflects payment of Rs. 19,75,000/- by Rahul Suri through RTGS]. Once again reproduced herein as Anx-1. 13. Re: Transaction of 26.07.2019 of Rs. 1,60,000.00 - no details were provided at any prior point of time - no discussion took place at any CoC meetings - no explanations were sought from the Respondents. For the first time, this allegation is made by RP only in the IA. Furthermore, even the bank account statement produced at pages 113 & 114 of the IA also do not reflect details of the impugned debit of Rs. 1,60,000/-. Nevertheless, Respondents have provided explanation for utilizing the said amount towards procuring diesel for Corporate Debtor's plant at Wada. [ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctions. 17. The RP (Rajendra Bhuta, Applicant herein) has absolutely no personal knowledge whatsoever The RP (Rajendra Bhuta, Applicant herein) took charge only in November 2019 and has no personal knowledge whatsoever about these transactions. In January 2020, for the first time in a CoC meeting held on 17-01-2020, the RP raised this issue and without giving any opportunity of explanation to the Respondents declared that there was breach of moratorium u/s. 14 [See page 131 of IA]. Then email was issued by the RP on 20-01-2020 to Respondent No. 1 and a response was immediately provided on 23-01-2020 within 3 days. [See pages 149 & 150 of IA]. The Erstwhile Directors have always co-operated and provided all necessary information. 18. Exclusion of 25 days from CIRP Period from 22nd July 2019 on account of receiving the Admission Order late. 18.1. It is an admitted position, that the Admission Order was available and uploaded only after 25 days. [See Public Announcement Anx-II @ page 28 of Apln]. For this reason, the RP had sought orders from this Hon'ble Tribunal for excluding the 25 days from the CIRP period and the same was allowed by the Hon'ble Tribunal vide its order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g no longer in charge of affairs of the Corporate Debtor is not entitled to continue the subject IA. The role of the Applicant RP is finite and comes to an end when the order of liquidation was passed. The Applicant RP's role has thus become functus officio on 9th March 2021 onwards. 20.2. The Liquidator is required to first apply his mind to the matter at hand and determine whether he wishes to continue pursuing the subject IA, and if so, then the Liquidator ought to bring himself on record officially in place of the Applicant RP. In the present form the Applicant RP has no locus to prosecute the subject IA. 21. The Manoj Daga judgment relied upon by the RP is wholly inapplicable: 21.1. The facts in the Manoj Daga judgment cited by the RP are clearly distinguishable from facts of our case. In Manoj Daga's case, there were unauthorized withdrawals by Suspended Directors when the IRP was already in charge of the Corporate Debtor and such withdrawals were done without IRP's approval and on the basis of "self" cheque withdrawals. In our case, the admission order was not available and not communicated, the Directors were in charge when the transactions were effected an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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