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TMI Blog2025 (4) TMI 1409X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 14 of the Insolvency and Bankruptcy Code, 2016 (IBC). The Appellants contend that the withdrawal was the result of the encashment of post-dated cheques issued to Kewal Kisan, prior to the initiation of the CIRP. They argue that the transaction was cheque-based and not through electronic transfer (NEFT/IMPS), and that the post-CIRP, presentation of the cheques was not their fault. Accordingly, they seek to set aside the Impugned Order through the present Appeal. Brief facts 2. It is claimed by the Appellant that the Impugned Order dated 16.01.2025 is silent upon the ground taken by the present Appellant on the contention of the Respondent Liquidator regarding illegally withdrawing an amount of Rs. 32,00,000/- from the Corporate Bank account while the said Corporate Debtor was under CIRP and Section 14 of the IBC was imposed upon the same. The AA failed to appreciate that the Appellant had issued post-dated cheque to Kewal Kisan for repayment of loan. If we scrutinise the bank statement, which was annexed with the Application vide IA No. 2025 of 2020 filed by the Ex-Interim Resolution Professional, we can see that it's a transaction through cheque and not a transfer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne of Res Judicata. It was in this context that IA 2021/2022 was preferred by the Liquidator. 6. At this juncture, it is pertinent to submit that CA 1253/2020 was preferred during the CIRP stage. The purpose of filing IA 2021/2022 was to bring to the knowledge of the AA, the fact of continuing non-cooperation of the Appellants as well as the brazen disobedience of the Appellants vis-à-vis Orders passed by the AA and this Appellate Authority qua wrongful utilisation of Rs. 32 lakhs during the CIRP moratorium. The IA 2021/2022 was heard and was decided by the Impugned Order dated 16.01.2025. The Appellants had shown non-cooperation during the CIRP and during the liquidation process, and the same is continuing as on date. The Appellants-Suspended Directors in both the Appeals shown abject non-cooperation during the CIRP and liquidation process. The Respondent-Liquidator claims that none of the documents as required by the Liquidator/Respondent have been provided by the Appellants hitherto. 7. Vide Order dated 09.11.2021 of the AA in the Application [IA 2025/2020], filed by the Resolution Professional under Section 60 (5), read with Section 66 of the Code, the suspended directo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s argument does not cut much wise and is not tenable as the Appellant could have very well instructed Mr Keval Kishan not to present those cheques as moratorium had kicked in. Appraisal : 13. We have heard the submissions of Ld. Counsel appearing for the Appellant as well as Ld. Counsel appearing for the Respondents and also perused the materials placed on record. Since the Impugned Order and facts of CA (AT) (Ins.) Nos. 432 and 433 of 2025 are the same, we have taken both the Appeals them together. 14. It is a matter of record that the CIRP of the Corporate Debtor was initiated by an order dated 05.12.2018, passed by the Adjudicating Authority. Consequently, Mr. Anoop Kumar Goyal was appointed as the Interim Resolution Professional and was subsequently confirmed as the Resolution Professional of the Corporate Debtor. 15. The Liquidation process was initiated by an order dated 04.01.2021, issued in IA-5415-2020 by this Adjudicating Authority, appointing Mr. Sanjay Garg as the Liquidator of the Corporate Debtor. 16. In IA No 1253 of 2020, the resolution professional had sought directions under Section 19(2) for the suspended board of directors for providing the record and oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CD, the respondents have not bothered to deposit an amount of Rs. 32 lakhs approximately. In view of the facts and circumstances stated in the Application and the arguments advanced on behalf of the Resolution Professional and the Respondents, we hereby direct the respondents to deposit an amount of Rs.32 lakhs along with interest 12% per annum from the date of the withdrawal and deposit the total amount to the accounts of the Corporate Debtor being maintained by the Resolution Professional within a period of 21 days from the date of this order and an affidavit of compliance shall be filed by the Respondent(s) in the Registry. In terms of the above, the IA stands disposed of." [emphasis supplied] 18. The suspended board of Directors preferred an appeal [CA(AT) (Insolvency) No. 47/2021] before this Appellate Authority. This Appellate Tribunal on 29.01.2021 heard the matter and noted that as per the order rated 9th November 2020, the Appellant i.e. the erstwhile director of the corporate debtor was directed to deposit the total amount of Rs. 32,00,000 along with interest at the rate of 12% p.a. from the date of withdrawal, which was in violation of the provisions of Section 14 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicating Authority's orders given on 09.11.2020. Such acts of total carelessness in complying with the requirements of law, amounting to defiance and disrespect of the legal process, cannot be condoned and needs to be dealt with strictly in accordance with the provisions of Chapter VII titled "OFFENCES AND PENALTIES" of the IBC." [emphasis supplied] 20. We find that while deciding Company Appeal (AT) (Insolvency) No. 1103 of 2020, this Appellate Authority, through its judgment dated 14.02.2022, had adverted to all the contentions of both the parties and recorded specific findings therein. The contents of these Appeals have already been adjudicated upon by this Appellate Authority. We had remanded CA 1253/2020 to the AA for fresh hearing with respect to the penalty of Rs. 5,00,000 to be imposed as per the provisions and of the code- the relevant extract are as follows: "12. With regard to the argument of the Learned Counsel of the Appellants that the Adjudicating Authority has imposed the penalty on the two ex-directors by invoking provisions of the Companies Act, 2013, and thus passed the Impugned Order by travelling beyond their jurisdiction, we are of the view that since the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uring the CIRP and during the liquidation process, and the same is continuing as on date. 23. In summary we find that the Appellants have defied the: Orders dated 09.11.2021 of the AA in IA No. 2025/2020 which contained directions to deposit a sum of Rs. 32 lakhs along with interest @12% p.a. Order dated 29.01.2021 of this Appellate Authority in Company Appeal (AT) (Ins) No. 47/2021 which was dismissed as withdrawn. We note that with the withdrawal of this Appeal, the Order of the AA dated 09.11.2021 of the AA in IA No. 2025/2020 had attained finality. The Judgment dated 14.02.2022 of this Appellate Authority in CA (AT) (Ins) No. 1103/2020 wherein the operative part of orders relates only relate to costs/penalty to be heard afresh by AA. And still the said amount, along with interest, has not been paid by the Appellants hitherto -which order had attained finality and is hit by res-judicata and is being agitated again and again. 24. In the above facts and circumstances, we note that the order dated 9th November 2021 has not been challenged before the Appellate Authority and has thus attained finality. Thus we do not find any infirmity in the orders of the Adjudicating Autho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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