198 SEBI & Corporate Laws - Reports [Vol. 154
date - In instant case respondents were not related party to corporate debtor nor
transactions were made during one year preceding insolvency commencement date,
in fact, same were made about 8-9 years back - Whether thus, it could not be said
that said transactions had been carried out with an intent to defraud creditors or
for any fraudulent purpose - Held, yes [Para 19]
FACTS
n
The
corporate
debtor
was
in
the
business
of
development
of
real
estate
and
was^
allotted
land
by
Noida
Authority
to
develop
a
commercial
complex.
The
same^
was
sold
to
various
purchasers
including
the
respondents.n
The
RP
of
corporate
debtor
filed
applications
alleging
violation
of
sections
43
and
45
and
for
setting
aside
the
transaction
entered
into
by
the
corporate
debtor^
on
the
ground
of
being
preferential
transfer
carried
out
with
a
view
to^
defraud
the
creditors.n
It
was
also
alleged
that
the
transactions
were
entered
into
by
the
promoters
and^
directors
of
the
corporate
debtor,
effecting
a
sale
by
an
agreement
was
a^
wrongful
transaction.
RP
submitted
that
the
sale
considerations
reflected
in^
the
registered
agreement
were
much
below
the
circle
rates
of
the
relevant
period^
and
therefore
undervalued.HELD
n
As
per
section
43 ,
the
‘relevant
period
for
preferential
transaction’
has
been
mentioned^
as
either
one
year
preceding
the
insolvency
commencement
date
or^
transaction
made
with
a
related
party
within
the
period
of
two
years
preceding^
the
insolvency
commencement
date.
[Para
13 ]n
The
respondents
are
not
a
related
party
nor
the
transactions
were
made
with^
any
person
during
one
year
preceding
the
insolvency
commence
ment -
date
and
in
fact
were
made
about
8 - 9
years
back,
the
application
under^
section
43 ,
read
with
section
45
preferred
by
RP
was
uncalled
for.
[Para^
14 ]n
Further,
no
case
is
made
out
by
the
RP
that
any
business
of
the
corporate
debtor^
has
been
carried
out
with
the
intent
to
defraud
the
creditors
of
the
corporate^
debtor
or
for
any
fraudulent
purpose.
A
so
called
alleged
violation
of^
section
43
or
section
45
cannot
be
termed
to
be
made
for
fraudulent
purpose.^
[Para
19 ]Naveen Sharma
,
Adv.
and
and^ Anup Kumar for the Appellant. Sanjay Goswami^
K. Bhimram Achary,
Adv.
for the Respondent.
JUDGMENTJustice S.J. Mukhopadhaya, Chairperson
- The
Resolution
Professional
of
‘M/s.^
Shivkala
Developers
Pvt.
Ltd.’
(Corporate
Debtor)
filed
three
applica
tions -
under
Sections
45 ,
49 ,
50 ( 5 )
and
66
r/w
Section
25 ( 2 )
of
the
Insolvency
and^
Bankruptcy
Code,
2016
(hereinafter
referred
to
as
‘I&B
Code’)
for
setting
aside^
the
transaction
entered
into
by
the
Corporate
Debtor
on
the
ground
of