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2018 Supreme(NCLAT) 473
NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
S.J. MUKHOPADHAYA, CHAIRPERSON, BANSI LAL BHAT, MEMBER (JUDICIAL)
IN THE MATTER OF:
Bhavik Bhimjyani - Appellant
Versus
Uday Vinodchandra Shah, RP of Neelkanth Township & Construction Pvt. Ltd. & Ors. - Respondents
Company Appeal (AT) (Insolvency) No. 182 of 2018
Decided on : 06-12-2018
For the Appellant :Mr. Darpan Wadhwa, Sr. Advocate with Mr. Kush Chaturvedi, Mr. Aman Varma, Ms. Smriti Churiwal and Ms. Chaitrika Patki, Advocates.
For the Respondents:Mr. Arun Kathpalia, Sr. Advocate with Mr. Abhishek Anand, Mr. Sidharth Samantray and Mr. Anuj Sarma, Advocates
ORDER :
The Appellant, a shareholder/ex-director has preferred this appeal against order dated 26th April, 2018 passed by the Adjudicating Authority (National Company Law Tribunal) Mumbai Bench wherein the Adjudicating Authority made following observations and passed following directions:-
“9. On examination of the records of the company, it appears that advances given to these entities aggregating to more than Rs.30 crores which is appearing in page No. 66 of this application. By correspondence made by R1, we are prima facie of the view that the promoter/director is hiding information from the Resolution professional as to ensure that the transaction entered into with the related companies; its subsidiaries and third parties are not shown as receivables/debts payable to the Corporate Debtor, in view of the same, R1 is hereby directed to furnish the documents that this applicant has sought in the e-mail dated 02.04.2018, which is annexed as Exhibit R to this application within 7 days hereof, failing which this Applicant is at liberty to approach this Bench for further directions.”
2. Learned counsel appearing on behalf of the Resolution Professional in reply affidavit dated 18th September, 2018 brought on record the a Chart to suggest the documents required by the Resolution Professional and the documents already provided by the Appellant, also showing why Resolution Professional requires those items. The chart is extracted below:-
| S.no. | Documents required by the RP | Documents provided to the RP | Reason as to why the RP requires them |
| A) Advances made by the Corporate Debtor to Lighthouse Developers Pvt. Ltd. for advancing a sum of Rs.5,27,00,000/- | |||
| 1 | Memorandum of Understanding dated 6th January 2015 (“MOU”) executed by the Corporate Debtor and Lighthouse Developers. | Minutes of the Board Meeting dated 6th January 2015 reproducing the contents of the MOU and approving the execution of the said MOU. But, the SIGNED MOU is neither annexed to the said minutes of the meeting nor handed over to the RP. | The Corporate Debtor has advanced a sum of Rs.5,27,00,000/- to Lighthouse Developers from the finances raised from the Financial Creditor but the Corporate Debtor has taking no steps whatsoever to recover the aforesaid amount advanced to Lighthouse Developer. It is pertinent to note that Mr. Bhavik Bhimjyani and his family hold approximately 60% stake in Lighthouse Developers Private Limited and that Mr. Bhavik Bhimjyani was a director in Lighthouse Developers till October’17. Further, Lighthouse Developers and the Corporate Debtor share the same registered address. |
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| 2 | Corporate Debtor’s Bank Statement showing the advance given to Lighthouse Developers Private Limited | Bank Statements of the Corporate Debtor pertaining to the period when the said advances were made to Lighthouse Developers have not been handed over to the RP. The RP is in possession of the Corporate Debtor’s bank statements from 10th August 2015 onwards. |
| 3 | Balance Confirmation Statement from Lighthouse Developers and Financial Statement | The RP by its email dated 21st February 2018 has called upon Lighthouse Developers to confirm the outstanding amount due and payable by it to the Corporate Debtor as well as for certain supporting documents to be provided to the RP for the same. Till date, No Response has been received from Lighthouse Developers Private Limited. |
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| B) Advances made to Bhagirathi Padte, Levi Bonkar, Mahesh Raukar, Manisha Korde, Prashant Garud and Sunder Padte | |||
| 1 | Ledger Copies of each advance made to the aforesaid individuals, from the date of advance till date. | The advances made by the Corporate Debtor to the said persons pertains to a period much prior to the period for which do | |
