Concord Infrastructure Private Limited Vs Shubhkamna Buildtech Private Limited (NCLT Delhi)
Held that suspended board of directors were involved in running the business of the corporate debtor in a fraudulent and wrongful manner, therefore, responsible and liable under the provision of Section 66 of the IBC Code, 2016.
Facts- The present application has been filed under Section 30(6) read with Section 31(1) of the Insolvency & Bankruptcy Code, 2016 read with Regulation 39(4) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 on behalf of Mr. Anand Sonbhadra Resolution Professional (RP) of M/s. Shubhkamna Buildtech Private Limited (`Corporate Debtor’), seeking approval of the Resolution Plan submitted jointly by Mr. Surender Kumar Singhal and Mr. Sunil Kumar Agarwal (`Successful Resolution Applicant’) and approved by the Committee of Creditors (`CoC) in its 6th CoC Meeting held on 09.10.2019.
The instant application has been filed on behalf of Mr. Anand Sonbhadra (`applicant resolution professional) under Section 66 of the Code, 2016 to bring fraudulent and wrongful transactions done by the suspended board directors of the corporate debtor.
Conclusion- Therefore, from the Jaypee Infratech case, it is clear that Section 66 of the Code, 2016 contemplates that during the CIRP or liquidation process 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 resolution professional pass an order.
A perusal of the forensic report and its contents, relevant Tally entries of the books of the corporate debtor showing payments to related entities, travel expense, personal expenses of director accounted in the corporate debtor’s account, explicitly reveals the fact that the corporate debtor has clearly consequently made the payments, which were not used for the business of the Corporate Debtor but otherwise and the said act of the suspended directors of the corporate debtor will squarely attract under the provisions of Section 66 of the Code, 2016.
We are of the considered view that respondents i.e. suspended board of directors were involved in running the business of the corporate debtor in a fraudulent and wrongful manner, therefore, responsible and liable under the provision of Section 66 of the Code, 2016.
FULL TEXT OF THE NCLT DELHI ORDER
The present application has been filed under Section 30(6) read with Section 31(1) of the Insolvency & Bankruptcy Code, 2016 (`the Code’) read with Regulation 39(4) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 (Regulations’) on behalf of Mr. Anand Sonbhadra Resolution Professional (RP) of M/s. Shubhkamna Buildtech Private Limited (`Corporate Debtor’), seeking approval of the Resolution Plan submitted jointly by Mr. Surender Kumar Singhal and Mr. Sunil Kumar Agarwal (`Successful Resolution Applicant’) and approved by the Committee of Creditors (`CoC) in its 6th CoC Meeting held on 09.10.2019.
2. Briefly stated, the facts as averred by the applicant in the application are stated are as follows:
a) The applicant submits that Corporate Insolvency Resolution Process against M/s. Shubhkamna Buildtech Private Limited (`Corporate Debtor’) had been initiated by Hon’ble NCLT vide its order dated 26.11.2018 in C.P.(IB)No. 1059/2018, petition under Section 9 of the Code, 2016 filed by M/s. Concord Infrastructure Private Limited (`Operational Creditor’).
b) The applicant submits that the Corporate debtor i.e., M/s. Shubhkamna Buildtech Private Limited is engaged in the business of real estate construction and development and was in the process of developing the projects on a plot of land admeasuring 22565.77 sq/mts bearing plot no. GH-05/B is situated at Sector 137, Noida and Sector-OlGreater Noida.
c) The applicant submits that the corporate debtor entered into purchase agreements for the purchase of flats/ commercial areas in the two projects of the corporate debtor i.e., Shubhkamna Advert Techomes Projects situated at Sector 137, Expressway, Noida and Shubhkamna City, Plot No. GH-02A, Sector-01, Greater Noida West (Noida Extension).
d) The applicant submits that pursuant to the public announcement in Form A on 30.11.2018 and 07.01.2019 (vide order dated 02.01.2019), the interim Resolution Professional constituted the Committee of Creditors based on the claims received from the creditors of the Corporate Debtor. The tabular representation depicting the voting percentage along-with the claim admitted of the creditors in each class/ entity of the corporate debtor is as follow:-
