Back
2023 Supreme(Online)(NCLT) 2515
IN THE NATIONAL COMPANY LAW TRIBUNAL INDORE SPECIAL BENCH COURT NO. 1 ITEM No.203 – (MP) IA 130 of 2020 ITEM No.204 – (MP) IA 131 of 2020 in TP 125 of 2019 [CP(IB) 159 of 2018]
Proceedings under Section 9 IBC IN THE MATTER OF:
Harshad V Vora ........Applicant V/s Bhagwan Motors Pvt Ltd ........Respondent Order delivered on 01/09/2023 Coram:
Mahendra Khandelwal, Hon’ble Member(J)
Kaushalendra Kumar Singh, Hon’ble Member(T)
PRESENT:
For the Applicant : For the Respondent :
ORDER
(MP) IA 130 of 2020 & (MP) IA 131 of 2020 These cases are fixed for pronouncement of the order.
The common order is pronounced in open Court, vide separate sheet.
-sd- -sd-
KAUSHALENDRA KUMAR SINGH MAHENDRA KHANDELWAL MEMBER (TECHNICAL) MEMBER (JUDICIAL)
A. Bhadauria / Stenographer BEFORE THE ADJUDICATING AUTHORITY NATIONAL COMPANY LAW TRIBUNAL IA/130/MP/2020 &
IA/131/MP/2020 In TP/125/MP/2019 CP(IB)/159/2018 In the matter of:
IA/130/MP/2020 (Application under section 60(5) & section 43 of the Insolvency and Bankruptcy Code, 2016, read with rule 11 of the NCLT Rules, 2016)
Mr. Mangesh Vitthal Kekre Resolution Professional of M/s Bhagwan Motors Private Limited
101/F, Sector-1, Industrial Area Road-II, Pithampur, Dist. Dhar, Madhya Pradesh- 454775 ……Applicant/Resolution Professional Versus Belmark Metal (I) Limited Plot No. 9 C & 9 Industrial Area, Sector-2, Pithampur, Dist. Dhar, Madhya Pradesh- 454775 ……Respondent No. 1 The Superintendent CGST & CEX Range V, Divison I Pithampur ……Respondent No. 2 IA/131/MP/2020 (Application under section 60(5) & section 43 of the Insolvency and Bankruptcy Code, 2016, read with rule 11 of the NCLT Rules, 2016)
Mr. Mangesh Vitthal Kekre Resolution Professional of M/s Bhagwan Motors Private Limited
101/F, Sector-1, Industrial Area Road-II, Pithampur, Dist. Dhar, Madhya Pradesh- 454775 ……Applicant/Resolution Professional Versus V E Commercial Vehicles Limited Pithampur, Dist. Dhar, Madhya Pradesh ……Respondent No. 1 Commercial Tax Officer Circle 15, Chetak Chambers, RNT Marg, Indore, Madhya Pradesh ……Respondent No. 2 In the main matter of:
TP/125/MP/2019 [CP(IB)/159/2018]
(Application under section 9 of the Insolvency and Bankruptcy Code, 2016)
Harshad V. Vora ……Operational Creditor Versus M/s Bhagwan Motors Private Limited ……Corporate Debtor Order pronounced on: 01.09.2023 Coram: Mahendra Khandelwal, Member (J)
Kaushalendra Kumar Singh, Member (T)
Appearance:
For IRP/RP: Ld. Adv. Mr. Anand Prabhawalkar a.w.
Ld. PCA Ms. Ayushi Patidar &
Mr. Mangesh Vitthal Kekre (RP- in person)
For Respondent: Ld. PCS Ms. Teena Saraswat Pandey (R-2) (IA/131/2020)
Ld. Proxy Adv. Ms. Rini Kothari (R-1) i/b Ld. Adv. Rajat Lohia (IA/130/2020)
Ld. Adv. Ms. Garima Malhotra (R-1) (IA/131/2020)
For the Petitioner:ANAND PRABHAWALKAR
For the Respondent:KANVA ANTANI
ORDER
1. IA/130/MP/2020 & IA/131/MP/2020 is filed by Mr. Mangesh Vitthal Kekre, resolution professional of M/s Bhagwan Motors Private Limited (Corporate Debtor) under section 60(5) and section 43 of the Insolvency and Bankruptcy Code, 2016 (the Code), read with Rule 11 of NCLT Rules, 2016, seeking appropriate directions against the respondents.
2. Submissions made by the resolution professional in its application i.e. IA/130/MP/2020, are summarized hereunder:
(i) This Adjudicating Authority vide order dated 21.06.2019 admitted the corporate debtor into Corporate Insolvency Resolution Process (CIRP). The applicant herein was appointed as the resolution professional for the corporate debtor by the Adjudicating Authority replacing the Interim Resolution Professional (IRP) Mr. Rajesh Lohia vide order dated 07.11.2019.
(ii) In the present application i.e. IA/130/MP/2020, a sum of Rs 29,08,415/- is recoverable on the date of initiation of CIRP from respondent no. 1, as per the statement of accounts available with the present applicant. The resolution professional vide demand letter dated 19.01.2020 called upon respondent no. 1 to immediately provide a statement of account of the corporate debtor in their books of accounts as well as to make the payments due as per books of accounts of the corporate debtor. In response, respondent no. 1 vide their reply dated 25.01.2020 submitted that no amount is recoverable from them, rather a sum of Rs 17,77,285/- is due from the corporate debtor to them.
(iii) Respondent no. 1 has unduly/unauthorized adjusted the accounts of the corporate debtor after initiation of CIRP which is clear from the ledger attached to their reply dated 25.01.2020, that by passing a Journal Voucher dated 01.08.2019, respondent no. 1 has intentionally debited a sum of Rs 49,15,286/- to the account of the corporate debtor. The act of respondent no. 1 is not in accordance with the law as after the CIRP initiation date moratorium has already been declared as per section 14 of the Code, prohibiting any recovery of the amount due from the corporate debtor.
(iv) The resolution professional has reminded respondent no. 1 a number of times through e-mail to either repay the outstanding amount or show the challan by which the amount has been deposited with the VAT/GST department. Respondent no. 1 has given no heed to all such efforts made by the resolution professional.
(v) Ultimately, on 20.03.2020 through challan identification no. SBIN20032300094449, respondent no. 1 has deposited an amount of Rs 26,26,584/- with the VAT/GST department and thereafter, vide e- mail dated 21.07.2020, it has informed the resolution professional that the amount has been deposited with the GST department.
(vi) The above adjustment made by respondent no. 1 has put the VAT/GST department in a preferential position consequently, putting the whole CIRP in a jeopardized state. The above transaction of making entries in the books in favor of the VAT/GST department and thereafter making a deposit with the same during the period of moratorium falls under the category of a preferential transaction as laid down in section 43 of the Code.
(vii) Resolution professional seeks direction from this Adjudicating Authority to direct respondent no. 1 to clear the outstanding dues of Rs 29,08,415/- forthwith and deposit the same with the resolution professional immediately. Further, to direct the VAT/GST department to reverse the payment made by respondent no. 1, and deposit the same with the resolution professional.
3. In reply, submissions made by respondent no. 1 in IA/130/MP/2020 are summarized hereunder:
(i) At the outset respondent no. 1 denies and refuses all the allegations averred by the resolution professional. The relief as claimed by the resolution professional cannot be allowed as a statutory liability of the corporate debtor under CIRP cannot be imposed upon the debtor of the corporate debtor, therefore, such application is extraneous to respondent no. 1.
(ii) There
