Mr. Rahul Jasoria vs Aargus Global Logistics Pvt. Ltd. & Ors

Mr. Rohit Jasoria, ....Appellant Prop. RJ Brothers & Partner RJ Logistics Service LLP Vs.

Aargus Global Logistics Pvt. Ltd. Through its ...Respondents Authorized Representative & Ors.

For Appellant: Mr. Dhiraj Kumar, Mr. Avinash Lakhanpal, Mr. Piyush Lakhanpal, Advocates.

For Respondents: Mr. Sowmya Saikumar, Advocate for R1. Mr. Abhishek Anand, Mr. Karan Kohli, Advocates for the Liquidator. Mr. Sahil Bhatia, Liquidator.

Comp. App. (AT) (Ins.) No. 588 of 2022 In the matter of:

Mr. Rahul Jasoria, ....Appellant Proprietor Y.K. Logistics, Y.K. International Vs.

Aargus Global Logistics Pvt. Ltd. Through its ...Respondents Authorized Representative & Ors.

For Appellant: Mr. Dhiraj Kumar, Mr. Avinash Lakhanpal, Mr. Piyush Lakhanpal, Advocates.

For Respondents: Mr. Sowmya Saikumar, Advocate for R1. Mr. Abhishek Anand, Mr. Karan Kohli, Advocates for the Liquidator. Mr. Sahil Bhatia, Liquidator.

ORDER

(Through Virtual Mode)

27.07.2022: Heard Learned Counsel for the Appellant. 2

2. Learned Counsel for the Appellant submits that amended memo has

already been filed where Respondent No.1- 'Aargus Global Logistics Pvt. Ltd.'

has been deleted from the array of the parties. Let the Respondent No.1 be

deleted from the array of the parties.

3. These two Appeals have been filed against the order dated 21.01.2022

passed by the Adjudicating Authority (National Company Law Tribunal), New

Delhi (Court No.V) on an Application filed under Section 66 of the IBC by the

Resolution Professional seeking directions to the Respondents to provide for

and make good to the Corporate Debtor for the losses caused due to the

Respondent's indulgence in fraudulent transactions. The Adjudicating

Authority by the said impugned order has allowed the Application and issued

directions. Appellant before us has also been directed to make contribution.

4. Learned Counsel for the Respondents submits that the same order

dated 21.01.2022 has already been challenged by the other Respondents to

the Application in Company Appeal (AT) (Ins.) No. 454 of 2022 which Appeal

has already been dismissed by this Tribunal vide its judgment and order dated

04.05.2022. It is submitted that this Appeal also deserves to be dismissed in

view of the judgment of this Tribunal dated 04.05.2022.

5. Learned Counsel for the Appellant submits that in that Appeal filed by

the Appellant, there are several other issues which are different from those

Appellant who had filed the Company Appeal (AT) (Ins.) No. 454 of 2022. He

submits that the Appellant's case was that in the ledger which was maintained

Comp. App. (AT) (Ins.) Nos. 587 & 588 of 2022 3

by the Appellant certain dues were due by the Corporate Debtor payable to the

Appellant themselves.

6. We have considered the submissions and perused the record.

7. This Appellate Tribunal while dismissing the Company Appeal (AT) (Ins.)

No. 454 of 2022 filed by the Ex-Promoter and Ex-Directors of the Corporate

Debtor has already returned finding that amounts written off as back dates

during the Financial Year comes within the fraudulent transactions under

Section 66. The amounts with regard to the Appellant were also written off by

the Director. Hence, the findings of this Tribunal in judgment dated

04.05.2022 also covers the case of the Appellant. The Adjudicating Authority

by the order impugned has directed to make good the said amount which was

shown as a debt of the Corporate Debtor. The submission that in the ledger of

the Appellant, certain amount was due to the Corporate Debtor does not in

any manner have any bearing on the findings of fraudulent transactions

recorded by the Adjudicating Authority and confirmed by this Tribunal. Thus,

we do not find any error in the impugned judgment.

8. Learned Counsel for the Appellant lastly contended that the direction

issued in paragraph 29 of the judgment to institute a prosecution under

Section 69 against the Appellant also along with the Directors of the Corporate

Debtor were uncalled for. He submits that under Section 69 punishment for

transaction defrauding creditors can be awarded only on the officer of the

Corporate Debtor or Corporate Debtor. Section 69 of the Code provides as

follows:-

Comp. App. (AT) (Ins.) Nos. 587 & 588 of 2022 4

"69. Punishment for transactions defrauding creditors. - [If] an officer of the corporate debtor or the corporate debtor-

(a) has made or caused to be made any gift or transfer of, or charge on, or has caused or connived in the execution of a decree or order against, the property of the corporate debtor;

(b) has concealed or removed any part of the property of the corporate debtor within two months before the date of any unsatisfied judgment, decree or order for payment of money obtained against the corporate debtor, such officer of the corporate debtor or the corporate debtor, as the case may be, shall be punishable with imprisonment for a term which shall not be less than one year, but which may extend to five years, or with fine which shall not be less than one lakh rupees, but may extend to one crore rupees, or with both:

Provided that a person shall not be punishable under this section if the acts mentioned in clause (a) were committed more than five years before the insolvency commencement date; or if he proves that, at the time of commission of those acts, he had no intent to defraud the creditors of the corporate debtor."

9. The above submission of the Counsel for the Appellant has substance.

The Respondent Nos. 9 and 10 were not the officers of the Corporate Debtor

so as to any punishment can be awarded on them under Section 69. We, thus,

are of the view that direction in paragraph 29 insofar as Respondent Nos. 9

and 10 (Appellants before us) for prosecution under Section 69 is deserves to

be set aside and is hereby set aside.

Comp. App. (AT) (Ins.) Nos. 587 & 588 of 2022 5

10. In the result, both the Appeals are partly allowed insofar as direction in

paragraph 29 for instituting prosecution under Section 69 against the

Appellants is concerned. Rest of the order is affirmed. Both the Appeals are

disposed of accordingly.

[Justice Ashok Bhushan] Chairperson

[Justice M. Satyanarayana Murthy] Member (Judicial)

[Barun Mitra] Member (Technical) Anjali/nn

Comp. App. (AT) (Ins.) Nos. 587 & 588 of 2022