9911796707
TMI Blog2025 (4) TMI 1406X X X X Extracts X X X X X X X X Extracts X X X X ..... able to contribute to the assets of the Corporate Debtor ("CD") to the extent of amount involved in satisfaction of charge, if any, created in favour of the Lenders of Appellants (Respondent No.3 and 4 to the Application). The Appellants aggrieved by this order has filed this Appeal. 2. Brief facts necessary to be noticed for deciding the Appeal are: i. New Empire Textile Processor Private Limited owned the Flat Nos.903 and 904 in Tirupati Apartment, Thane (West). The Flats were purchased by Registered Sale Deed dated 21.08.2017 for consideration of Rs.69,00,000/- for each flats. Both, Appellant Nos.1 and 2 in order to purchase the Flats availed a loan facility from Bharat Co-operative Bank, Mumbai of an amount of Rs.55,20,000/-. The amount was sanctioned and disbursed to the account of the CD. The loan installments along with interest are being paid by the Appellants till date. ii. The CD - New Empire Textile Processor Pvt. Ltd. was admitted to Corporate Insolvency Resolution Process ("CIRP") on 26.08.2019. The Respondent - Kailash Shah was appointed as Resolution Professional ("RP"). Another Company - Sangeeta Tex Dyes Pvt. Ltd. was also admitted to CIRP on 29.01.2020. iii ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vt. Ltd. vs. The State of West Bengal in Miscellaneous Application No.1302 of 2023 in Special Leave Petition (Cr.) No.___ of 2023 (Diary No.6732 of 2023). 4. Learned Counsel for the Respondent refuting the submissions of the Appellants contends that no sale consideration was received in the account of the CD by transfer of Flat Nos.903 and 904. The loan amount of Rs.55,20,000/- was transferred in to M/s Sangeeta Tex Dyes Pvt. Ltd., where husband of Appellant No.1 and father of Appellant No.2 is Director. Further, consideration was adjusted towards the consultancy charges. However, there is no material brought on record that what consultancy was provided by the Appellant to the CD to claim any consultancy charges. It is submitted that sale of Flats were void and Adjudicating Authority had ample jurisdiction under Sections 66 and 67 to issue appropriate directions. Learned Counsel for the Respondent relying on Section 66 sub-section (1) submits that Adjudicating Authority may pass an order that any person who were knowingly parties to the carrying on of the business in such manner shall be liable to make such contributions to the assets of the CD. It is submitted that the Appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per section 10A. Explanation. - For the purposes of this section a director or partner of the corporate debtor, as the case may be, shall be deemed to have exercised due diligence if such diligence was reasonably expected of a person carrying out the same functions as are carried out by such director or partner, as the case may be, in relation to the corporate debtor." 7. Section 66, sub-section (1) provides that if it is found that any business of the Corporate Debtor has been carried on with intent to defraud creditors of the corporate debtor or for any fraudulent purpose, the Adjudicating Authority may on the application of the RP pass an order that any persons who were knowingly parties to the carrying on of the business in such manner shall be liable to make such contributions to the assets of the corporate debtor as it may deem fit. The sale of Flats were made in favour of the Appellants on consideration. Both the Appellants had also taken loan of Rs.55,20,000/- for payment and consideration of which amount was transferred by the Bank in the account of the CD. Loans were taken by the Appellants and the charge was created on the assets. It is the case of the Appellants tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent No. 3 & 4 have also not pleaded in the reply what services were rendered by them to the Corporate Debtor to earn such consultancy charges. Accordingly, to the extent of consultancy charges of Rs. 13,74,000/- to Mrs. Sangeeta Mehta i.e. Respondent No. 3 and Rs. 13,80,000/- to Mr. Divyank Jatinder Mehta i.e. Respondent No. 4 can not be said to be a bona-fide transaction. 8. The judgment, which has been relied by learned Counsel for the Respondent in Royal India Corporation Ltd. (supra) of this Tribunal supports the submission of Respondent that action under Section 66, sub-section (1) can be taken against any person. The judgment of this Tribunal in Tridhaatu Kirti Developers LLPi also supports the submission of learned Counsel for the Respondent. We, thus, do not find any error in the judgment of Adjudicating Authority insofar as it has held that transaction of payment of consultancy charges to Appellant Nos.1 and 2 were not bona-fide transaction. 9. The judgment of Tripura High Court in Smt. Sudipa Nath (supra) has been relied by the Appellant. In paragraph 19 of the judgment, following was laid down: "(19) Therefore, in legislature wisdom and as apparent from the text of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ejected the Application filed by the Applicant. The Hon'ble Supreme Court observed following in paragraph-10: "10. We are of the considered opinion that in such circumstances, it is for the Resolution Professional or the successful resolution applicant, as the case may be, to take such civil remedies against third party, for recovery of dues payable to corporate debtor, which may be available in law. The remedy against third party, however, is not available under Section 66 of IBC, and the civil remedies which may be available in law, are independent of the said Section." 12. The present is a case where Adjudicating Authority has also held that payments of consultancy charges to the Appellants is fraudulent and in exercise of power under Section 66(1) has directed the said contribution void. We, however, relying on the judgment of Tripura High Court in Smt. Sudipa Nath agree with the submission of the Appellant that Adjudicating Authority could not have declared the Sale Deed in favour of the Appellants dated 21.08.2017, as void. As observed above, the Sale Deed was obtained by the Appellants of two Flats by payment of consideration of Rs.69,00,000/- each, out of which Rs.55,20, ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
