206 SEBI & Corporate Laws - Reports [Vol. 154
titious
sales
to
third
party
are
not
made
in
the
ordinary
course
of
business
or^
financial
affairs
of
the
corporate
debtor
and
satisfy
the
criteria
of
section
43
to
be
labelled
as
preferential
transactions.
Therefore,
the
prayers
of
the
applicant^
of
recovery
of
sums
from
respondents
towards
such
transactions
are^
also
allowed
being
preferential
transactions
and
the
power
is
exercised
under^
section
44 ( 1 )(
d
)
to
require
the
aforesaid
respondents
to
pay
such
sums^
in
respect
of
the
benefits
received
by
them
from
the
corporate
debtor.
[Para^
36 ]n
In
view
of
these
observations
and
considering
the
totality
of
facts
and
cir
cumstances -
of
the
case,
the
MA
is
allowed
in
its
entirety.
The
respondents
are^
directed
to
return
the
siphoned
off
sums.
The
respondents
are
also
directed^
to
revert
back
an
equal
amount
of
benefits
received
by
them
from
the^
corporate
debtor.
Failure
to
comply
with
this
order
will
push
the
Bench
to^
take
penal
actions
under
sections
70 - 73.
[Para
37 ]Khushboo Shah Rajani
and
Ayush J. Rajani for the Applicant.
ORDERThe
Corporate
Insolvency
Resolution
Process
of
Sanaa
Syntex
Private
Limited^
(the
Corporate
Debtor)
commenced
on
22. 08. 2017 ,
pursuant
to
ad
mission -
of
Section
7
application
(CP
172 /I&BP/NCLT/MB/ 2017 )
filed
by
a
Financial^
Creditor
State
Bank
of
India.
The
Corporate
Debtor
could
not
be
revived^
because
the
CoC
had
not
approved
the
Resolution
Plan
submitted
for
due^
approval
of
CoC,
therefore,
liquidation
order
was
passed
on
19. 07. 2018.
Consequently,^
Mr.
Anuj
Bajpai
was
appointed
as
the
Liquidator.
The
liquidator/
Applicant
in
this
application
seeks
the
following
prayers
:“a. Consider and allow this MA 436/2018 in terms of sections 19(2), 45, 66 read
with Section 26 of IBC, 2016;
b.
Require the persons as detailed in this above, to pay such sums as stated
above in respect of benefits received by them from the Corporate Debtor as
the Hon’ble Tribunal may direct;
c.
Pass appropriate directions/orders in terms of sections 48, 67, 70, 71, 72 and
73 of the Code including for recovery/restoration of legitimate amounts due
to the Corporate Debtor”.
2.
It
is
worth
to
note
that
during
the
course
of
Corporate
Insolvency
Res
olution -
Process,
the
RP
noticed
certain
transactions
which
appeared
to
be
fraudulent^
or
preferential
in
nature,
therefore,
this
application
was
filed
by
the^
RP
during
the
period
of
Corporate
Insolvency
Resolution
Process.
The
Company^
could
not
be
revived,
therefore,
Liquidation
order
was
passed
for
the^
Corporate
Debtor
and
the
Liquidator
was
appointed.
Now
keeping
in
view
the^
fact
that
if
there
is
a
syphoning
off
of
funds
of
the
Corporate
debtor,
it
is
important^
that
the
money
be
brought
back
for
the
completion
of
liquidation
proceedings.^
Sections
43
&
45
start
with
the
phrase
“
Where the liquidator or
the resolution professional.......”,
hence
it
can
be
understood
that
the
avoid
ance -
or
preferential
or
undervalued
transactions
can
be
handled
even
at
the