Rana Sarkar Vs Bimal Agarwal (NCLAT Delhi)
NCLAT Delhi held that intention to defraud creditors of Corporate Debtor was based on documentary evidence, accordingly, all the ingredients under section 66 of the Insolvency and Bankruptcy Code are attracted. Thus, appeal lacks merits and hence dismissed.
Facts- The instant appeal has been preferred by the appellant under Section 61 of the Insolvency and Bankruptcy Code, 2016 against the impugned order date 14.07.2022 passed by National Company Law Tribunal whereby the application moved under Section 66 of the Code was allowed and the appellant was directed to deposit a sum of Rs. 1,00,700/- and sum of Rs. 10,54,00,000/- jointly with other directors of the corporate debtor (CD) with a consequential interest of 8% p.a. within one month of the date of passing of the order.
Conclusion- Held that the facts and documentary evidence available in this case is required to be appreciated in the background of this vital factual situation that the directors of the corporate debtor who are accused of making fraudulent transactions were also under an obligation to justify these transactions to establish that these transactions are such, which have been made in ordinary course of business and they cannot take any benefit of the lack of documentary evidence, which they themselves did not provide to the Resolution Professional. Once the burden has been discharged by the RP pertaining to the establishment of aforesaid transactions as fraudulent, the onus has shifted on the directors of the company, including the appellant to justify these transactions to have been done in ordinary course of business and if they did not produce any reliable documentary evidence in support of their explanation/justification they cannot avoid the liability under section 66 of the IBC. The vague reply given by the appellant in the instant case, to justify these transactions to have been done in ordinary course of business, in our considered opinion is not sufficient enough to justify these transactions, especially when withdrawals of cash from the account of the CD were made when the company was admittedly in financial distress and facing various litigations. Thus, held that we do find any good ground to interfere in the impugned judgement passed by the learned Tribunal. In result the Appeal filed by the appellant lacks merits and is hereby dismissed.
