JUDGEMENT

(09.05.2023)

[Per: Dr. Alok Srivastava, Member (T)]

1. Two Appeals, namely Company Appeal (AT) (Ins.) No.747/2021 (“Appeal – I”) and Company Appeal (AT) (Ins.) No.748/2021 (“Appeal – II”), are being disposed of through this common judgement.

2. The above-stated Appeals have been filed under Section 61 of the Insolvency and Bankruptcy Code (“IBC”), assailing order dated 30.07.2021 (“impugned order”) passed by the Adjudicating Authority (National Company Law Tribunal, New Delhi), whereby I.A. No.2499/2020 and I.A. No.2496/2020, both filed in the Company Petition No. (IB) – 197(ND)/2018 preferred under section 7 of the IBC.

3. The impugned order has concluded that the charge on the property of the corporate debtor with respect to the two Agreements in form of Bajaj Finance Ltd. (Respondent in both the Appeals) has not been created with an intent to defraud the creditors of the corporate debtor and hence the said transactions regarding creation of charge over the property bearing No. K – 3, 5^th Floor, Brahm Datt Tower, Sector 18, Noida (“mortgaged property”) is not a fraudulent transaction. Additionally, a transaction amounting to Rs.1,02,09,360/- between the corporate debtor and Respondent - SAKS Developers LLP is a preferential transaction and therefore refund of this amount by Respondent - SAKS Developers has been directed to be made to the corporate debtor.

4. The facts in Appeal – I are that the corporate debtor went into insolvency on 04.04.2018, and since no resolution of its insolvency could be achieved in the prescribed time period, an order for liquidation was passed on 05.02.2020. During the liquidation proceedings, the liquidator filed I.A. No. 2499 of 2020 for declaring the security interest created by the corporate debtor by mortgaging the property bearing No. K–3, 5^th Floor, Brahm Datt Tower, Sector 18, Noida, as being a preferential/fraudulent transaction. In the Impugned Order, the Adjudicating Authority held that the creation of the said security interest in favour of Bajaj Finance Ltd. is not a preferential or fraudulent transaction and the liquidator is aggrieved by this part of the said Impugned Order.

5. The Appellant has stated that the corporate debtor along with some individual co-borrowers, who are Mr. Ramesh Kumar Suneja, Mrs. Savitri Suneja and Mr. Pankul Suneja and also the companies Skyland International Private Ltd. and S. Kumar and Company Private Ltd. took two loans, namely (i) Loan Account No. 401 FSP 35751847, for an amount of Rs.3,46,62,656/-; and (ii) Loan Account No. 401 FSP 35716264, for an amount of Rs.5,81,32,553/- vide two separate loan agreements dated 28.02.2017 and the corporate debtor created security interest by mortgaging his property No. K–3, 5th Floor, Brahm Datt Tower, Sector 18, Noida (“Mortgaged Property”) in favour of Bajaj finance Ltd. (Respondent No. 4 in Appeal – I). He has further stated that the mortgage on this immovable property was created for the benefit of the three individuals Mr. Ramesh Kumar Suneja, Mrs. Savitri Suneja, Mr. Pankul Suneja who actually benefited from the said loans even though the property was in the ownership of the corporate debtor Pawan Buildwell Private Limited. He has submitted that in this manner, a fraud was perpetrated to the detriment and disadvantage of the creditors of the corporate debtor.

6. Insofar as the facts of Appeal – II are concerned, the Appellants Mr. Ramesh Kumar Suneja, Mrs. Savitri Suneja and Mr. Pankul Suneja have claimed that a Memorandum of Understanding (“MoU”) was executed between the corporate debtor and SAKS Developers Pvt. Ltd. (Respondent No. 3 in Appeal – II) on 30.08.2018 at which time no moratorium on account of section 14 of the IBC was in force, and on the basis of the MoU, an amount of Rs.1,02,09,360/- was transferred by the corporate debtor to SAKS Developers Private Limited, which was in the ordinary course of business and not a preferential transaction as held in the impugned order. He has further submitte