IA No. 2048/MB/C-I/2019

In

C.P (IB) No.2295/MB/C-I/2018

An application under Section 66 of the Insolvency and Bankruptcy

Code, 2016

Filed by

Mr. Ashish Kumar Rathi, Resolution Professional of

Sunil Hitech Engineers Limited

…Applicant

Versus

Mr. Sunil Gutte and Ors.

…Respondents

Order Pronounced on: 13.08.2024

Coram:

Hon’ble Member (Judicial) : Justice V.G. Bisht (Retd.)

Hon’ble Member (Technical) : Mr. Prabhat Kumar

Appearances:

For the Applicant : Ms. Nandita Bajpai, Advocate

For the Respondent No. 1 and 2 : Mr. Pratik Pandey, Advocate

ORDER Applicant is seeking a direction that the Respondents contribute jointly and severally, to the assets of the Corporate Debtor for the amount equivalent to the funds transferred to the JV’s amounting to Rs.35,84,30,960/- along with such interest. Mr. Sunil Gutte, (Respondent No. 1) is the suspended promoter/director of the company, Mr. Harshvardhan Kaushik, (Respondent No.2) was the Chief Financial Officer of the company at the relevant time. SHEL-RCM JV (Respondent No.3), SHEL-Varaha JV (Respondent No.4) and Varaha-SHEL JV (Respondent No.5) are the joint ventures.

Per: Justice V.G. Bisht, Member(Judicial)

1. The Applicant has filed the present Application impugning certain transactions

under Section 66 of the Insolvency and Bankruptcy Code, 2016 (‘Code’). The

2. CIRP commenced against the Corporate Debtor vide order dated 10.09.2018.

Subsequently, the Corporate Debtor was Liquidated vide order dated 25.06.2019.

3. The Applicant appointed NV Dand and Associates (“NVD”) as the forensic auditor to conduct forensic audit of the Corporate Debtor. The Auditor in the Forensic Audit Report dated 02.06.2019 reported that the Corporate Debtor has entered into several transactions under Section 66 of the Code.

4. The Applicant submits that Corporate Debtor transferred funds to Joint Ventures between April 2018 and September 2018. The Corporate Debtor had formed part of various unincorporated Joint Ventures to participate in various infrastructure projects. Various tenders were awarded by the National Highways Authority of India (NHAI) and Ministry of Road Transport & Highways (MORTH). The details of the said JV’s are tabulated hereinbelow:

Date of Name JV Partner Project Contract Stake of Stake Joint of JV name Value the of JV Bidding (In Corporate Partner Agreement Crores) Debtor

5. The JV’s sub-contracted the projects on back-to-back to various entities/sub-

contractors. Through sub-contracts, the JV’s have 100% sub-contracted all the projects awarded to them by NHAI and MORTH to the various subcontractors.

6. Further, VAG Builtech Ltd. is a subsidiary company of the Corporate Debtor, which has sub-contracted its portion of work back to the counterpart sub-contractor. The Corporate Debtor entered into various project management services agreements with all the aforementioned Respondent JV’s on 11.04.2018. In terms of the said agreement, Corporate Debtor is entitled to receive an amount of 1.5% of the total contract price for reach project from the respective JV.

7. It is the Applicant’s case that since the entire project work was carried out by the sub-contractors appointed, the JV’s had no financial obligations to be carried out in terms of the said projects, there was no requirement for the Corporate Debtor to transfer any amount to the JV’s. However, it is submitted that the Corporate Debtor through its various entities had transferred an amount of Rs.35.84/- Crores to the Joint Ventures. The details are tabulated hereinbelow:

8. The Applicant submits that the aforesaid amounts were transferred by the Corporate Debtor without any justification and were transferred just months prior to commencement of Corporate Insolvency Resolution Process of the Corporate Debtor. It is also submitted that the Corporate Debtor has arranged bank guarantees amounting to Rs.99.94 Crores, at its own costs, i.e. by bearing bank commission. The impact of such arrangement was to put the company under financial distress considering the fact the Cor