Alok Tripathi Vs Mohit K Gupta (NCLAT Delhi)
NCLAT Delhi held that application filed under section 43 of the IBC by Liquidator on the basis of Transaction Audit Report for avoidance of preferential transactions tenable in law. Accordingly, appeal dismissed.
Facts- The Corporate Debtor was incorporated on 04.04.2013, with a paid-up capital of Rs 66 lakhs only. The Corporate Debtor was doing good business but it faced a financial crunch in 2019. The Appellant/Director of the Corporate Debtor met with one Mr. Vijay Thapar, who assured the Director to get him a big loan and took hefty amounts of money as service charges. However, he turned out to be a con and never arranged for the assured loan for the Corporate Debtor. After paying the money to him, the finances of the Company went into doll-drum and resulted into the collapse of the Company.
Due to the inability of the Corporate Debtor to pay its Creditors, they approached the Hon’ble Adjudicating Authority, and the Corporate Debtor was placed under CIRP on 17.05.2022 and subsequently under liquidation on 12.10.2022. The Liquidator filed I.A. No. 5166 of 2023 u/s. 43 of the IBC based upon the Transaction Audit Report.
Appellant contends that the Liquidator had failed to form his independent opinion about the existence of the preferential transaction. Appellant contends that as per the provisions of Section 43, the Application by the Resolution Professional or the Liquidator, as the case may be, is to be filed after forming his opinion in this regard. The Adjudicating Authority failed to consider the fact that the Applicant has not submitted his opinion in the Application and was supposed to submit his opinion and grounds thereof as per the provisions of Section 43 of the IBC.
