Tirumala Balaji Alloys Pvt Ltd vs Sumit Binani

Tirumala Balaji Alloys Private Limited ...Appellant

Versus

Sumit Binani ...Respondent

Present:

For Appellant : Mr. Abhijeet Sinha, Mr. Arjun Asthana, Ms. Sreenita Ghosh, Mr. Saikat Sarkar, Advocates.

For Respondent: Mr. Nakul Mohta, Mr. Johnson Subba, Advocates for R-1.

Company Appeal (AT) (Insolvency) No. 601 of 2018

IN THE MATTER OF:

M/s. Excello Fin Lea Limited ...Appellant

Versus

Sumit Binani & Anr. ...Respondents

Present:

For Appellant : Mr. U.K Chaudhary, Senior Advocate with Ms. Pooja Saigal, Mr. Akshay Gupta, Mr. Dhruv Gupta, Advocates.

For Respondents: Mr. Nakul Mohta, Mr. Johnson Subba, Advocates for R-1. 2

SUDHANSU JYOTI MUKHOPADHAYA, J.

In both the appeals as common impugned order dated 6th August,

2018 is under challenge and common question of law being involved, they

were heard together and disposed of by this common judgment.

2. In the 'Corporate Insolvency Resolution Process' against 'Monnet Ispat

& Energy Limited' ('Corporate Debtor'), the 'Resolution Professional' filed

Miscellaneous Application under Sections 43 and 44 of the Insolvency and

Bankruptcy Code, 2016 ("I&B Code" for short) against Appellants- 'Excello

Fin Lea Limited' and 'Tirumala Balaji Alloys Pvt. Ltd.' for refund of

Rs.23,48,40,274/- from 'Excello Fin Lea Limited' and for refund of

Rs.5,68,38,355/- from 'Tirumala Balaji Alloys Pvt. Ltd.' along with interest

@18% per annum on the ground that the payments were made by the

'Corporate Debtor' to the Appellants falls within the ambit of 'preferential

transactions' as referred under Section 43 of the 'I&B Code'.

3. The Adjudicating Authority (National Company Law Tribunal),

Mumbai Bench, Mumbai by impugned order dated 6th August, 2018, after

notice and hearing the parties, including the Appellants, allowed the

Miscellaneous Application and directed the 'Excello Fin Lea Limited' to

restore entire transferred amount and 'Tirumala Balaji Alloys Pvt. Ltd.' was

directed to restore transfers made on 28th October, 2016 and 31st March,

2017 aggregating to Rs.2,84,00,274/- along with 12% interest till the date of

Company Appeal (AT) (Insolvency) Nos. 600 & 601 of 2018 3

realisation to the 'Corporate Debtor' within 30 days from the date order is

made available to the parties.

4. Learned counsel appearing on behalf of the Appellants submitted that

the Appellants were engaged in the business of extending loans in the forms

of ICD to various companies. The 'Corporate Debtor' is one such company,

to which loans were extended by 'Tirumala Balaji Alloys Pvt. Ltd.' on 8th

October, 2015 and 9th October, 2015. Despite the transaction between

Appellants and the 'Corporate Debtor' being in the usual course of business,

the Adjudicating Authority has held that it was a preferential transaction

and directed to refund the amount.

5. It was submitted that the 'Corporate Debtor' was facing financial

stress for some years, the lenders implemented the SDR in the 'Corporate

Debtor' in August, 2015 and converted Rs.350 Crore of their dues into

equity to hold 51% equity (controlling stake) in the 'Corporate Debtor'.

Owing to the heavy financial stress, the 'Corporate Debtor' was unable to

source funds from its existing lenders, as the lenders did not provide any

additional line of credit, for the purpose of meeting its financial obligations

including working capital requirements.

6. According to the learned counsel for the Appellants, the transactions,

in question, were made during the usual course of business and do not fall

within the meaning of 'preferential transactions'. Reliance has been placed

on the decision of this Appellate Tribunal in "Anup Kumar, Resolution

Professional of M/s. Shivkala Developers Pvt. Ltd. v. BDR Builder &

Company Appeal (AT) (Insolvency) Nos. 600 & 601 of 2018 4

Developers Pvt. Ltd. & Ors.− Company Appeal (AT) (Insolvency) No. 679

of 2018".

7. On the other hand, according to counsel for the 'Resolution

Professional', the transactions, in question, are 'preferential transactions'

and made in favour of the 'related party' by the Promoter of the 'Corporate

Debtor'.

8. Learned counsel for the Appellant- 'Tirumala Balaji Alloys Pvt. Ltd.'

submitted that part payment of Rs.30,94,272/- (after deducting TDS) was

made out of interest accrued @15% per annum. Thereafter, a sum of

Rs.2,50,00,000/- towards part payment of principal was also paid to the

Appellant on 13th July, 2016 which is more than one year before the

commencement date of initiation of the 'Corporate Insolvency Resolution

Process'.

9. It was submitted that the 'Corporate Debtor' paid a sum of

Rs.2,50,00,000/- towards part payment of principal amount to the

Appellant on 29th October, 2016 which is more than one year before the

commencement date of initiation of the 'Corporate Insolvency Resolution

Process', therefore, it cannot be termed to be 'preferential transactions'.

Referring to the earlier payments, it was submitted that all the payments

were in usual course of transaction.

10. The 'Corporate Insolvency Resolution Process' was initiated on 18th

July, 2017 on admission of application under Section 7 of the 'I&B Code'.

The transactions which were made between the parties and reflected in the

records of the 'Corporate Debtor' shows that the 'Corporate Debtor' availed Company Appeal (AT) (Insolvency) Nos. 600 & 601 of 2018 5

loan of Rs.23 Crores at an interest rate of 18% per annum from 'Excello Fin

Lea Limited' and Rs.5 Crores at an interest rate of 15% per annum from

'Tirumala Balaji Alloys Pvt. Ltd.'. The amounts were reflected in the Bank

Accounts as under:

"Excello Fin Lea Limited'

Date Bank Account Number of Bank Name Type of Received Corporate Debtor Account 5.10.2016 2554002100002680 PNB RPR Current 7,50,00,000 (Punjab Account National Bank, Raipur) 5.10.2016 2554002100002680 PNB RPR Current 7,50,00,000 (Punjab Account National Bank 5.10.2016 2554002100002680 PNB RPR Current 5,00,00,000 (Punjab Account National Bank 6.10.2016 65254133186 SBI (erstwhile Current 3,00,00,000 SBOP) Account TOTAL 23,00,00,000

'Tirumala Balaji Alloys Pvt. Ltd.'

Date Bank Account Number of Bank Name Type of Received Corporate Debtor Account 8.10.2015 278640000025 HDFC Current 4,00,00,000 Account 9.10.2015 278640000025 HDFC Current 1,00,00,000 Account TOTAL 5,00,00,000

11. The Adjudicating Authority has noticed that the 'Corporate Debtor'

has been in losses since long, but as to the loan taken from 'Excello Fin Lea

Limited' in three transactions on 5th October, 2016, the 'Corporate Debtor'

repaid Rs.20 Crores on 15th November, 2016 i.e. within 40 days from the

date of borrowing, the interest paid on 29th November, 2016; as to remaining

Rs.3,00,00,000/- shown as taken by the 'Corporate Debtor' from 'Excello Fin

Company Appeal (AT) (Insolvency) Nos. 600 & 601 of 2018 6

Lea Limited', the principal was repaid on 6th January, 2017, and interest of

Rs.10,80,000/- was shown as paid on 21st March, 2017 i.e. within 80 days

from the date of borrowing, details are as follows:

"Excello Fin Lea Limited'

Date Bank Account Number of Bank Name Type of Received Corporate Debtor Account 15.11.2016 278640000025 HDFC Current 20,00,00,000 Account 29.11.2016 65254133186 SBI (erstwhile Current 37,60,274 SBOP) Account 21.03.2017 65254133186 SBI (erstwhile Current 3,00,00,000 SBOP) Account 31.03.2017 65254133186 SBI (erstwhile Current 10,80,000 SBOP) Account TOTAL 23,48,40,274

12. As to 'Tirumala Balaji Alloys Pvt. Ltd.' loan, the records of the

'Corporate Debtor' discloses that repayment was made to 'Tirumala Balaji

Alloys Pvt. Ltd.' on 11th July, 2016, 13th July, 2016, 28th October, 2016, 31st

March, 2017, as mentioned below:

'Tirumala Balaji Alloys Pvt. Ltd.'

Date Bank Account Number of Bank Name Type of Received Corporate Debtor Account 11.7.2016 65254133186 SBI (erstwhile Current 34,38,081 SBOP) Account

13.7.2016 65254133186 SBI (erstwhile Current 2,50,00,000 SBOP) Account 28.10.2016 2554002100002680 PNB RPR Current 2,50,00,000 Account 31.03.2017 65254133186 SBI (erstwhile Current 34,00,274 SBOP) Account TOTAL 5,68,38,355

13. According to the 'Resolution Professional', the promoters of the

'Corporate Debtor' hold 99.4% shareholding in 'Excello Fin Lea Limited', and

50% shareholding in 'Tirumala Balaji Alloys Pvt. Ltd.'. Regarding remaining

Company Appeal (AT) (Insolvency) Nos. 600 & 601 of 2018 7

50% in 'Tirumala Balaji Alloys Pvt. Ltd.', it has been held by the close

relatives of the promoters of the 'Corporate Debtor' i.e. 'Rungta Family',

therefore, according to the 'Resolution Professional', both the aforesaid

Companies fall within the definition of "Related Party" as defined under

Section 5(24) of the 'I&B Code'.

14. Further, according to the 'Resolution Professional', since these two

transactions having taken place within two years before Insolvency

Commencement Date i.e. 18th July, 2017, as per Section 43(4) of the 'I&B

Code', all the transactions should be treated as 'preferential transactions'.

15. Section 43 of the 'I&B Code' deals with 'preferential transactions' as

under:

"43. Preferential transactions and relevant time─

(1) Where the liquidator or the resolution professional, as

the case may be, is of the opinion that the corporate

debtor has at a relevant time given a preference in such

transactions and in such manner as laid down in sub-

section (2) to any persons as referred to in sub-section

(4), he shall apply to the Adjudicating Authority for

avoidance of preferential transactions and for, one or

more of the orders referred to in section 44.

(2) A corporate debtor shall be deemed to have given a

preference, if-

(a) there is a transfer of property or an interest

Company Appeal (AT) (Insolvency) Nos. 600 & 601 of 2018 8

thereof of the corporate debtor for the benefit of a

creditor or a surety or a guarantor for or on

account of an antecedent financial debt or

operational debt or other liabilities owed by the

corporate debtor; and

(b) the transfer under clause (a) has the effect of

putting such creditor or a surety or a guarantor in

a beneficial position than it would have been in

the event of a distribution of assets being made in

accordance with section53.

(3) For the purposes of sub-section (2), a preference shall

not include the following transfers-

(a) transfer made in the ordinary course of the

business or financial affairs of the corporate

debtor or the transferee;

(b) any transfer creating a security interest in

property acquired by the corporate debtor to the

extent that-

(i) such security interest secures new value

and was given at the time of or after the

signing of a security agreement that

Company Appeal (AT) (Insolvency) Nos. 600 & 601 of 2018 9

contains a description of such property as

security interest and was used by

corporate debtor to acquire such property;

and

(ii) such transfer was registered with an

information utility on or before thirty days

after the corporate debtor receives

possession of such property:

Provided that any transfer made in pursuance of

the order of a court shall not, preclude such

transfer to be deemed as giving of preference by

the corporate debtor.

Explanation.-- For the purpose of sub-section (3) of

this section, "new value" means money or its

worth in goods, services, or new credit, or release

by the transferee of property previously

transferred to such transferee in a transaction

that is neither void nor voidable by the liquidator

or the resolution professional under this Code,

including proceeds of such property, but does not

include a financial debt or operational debt

substituted for existing financial debt or

operational debt.

Company Appeal (AT) (Insolvency) Nos. 600 & 601 of 2018 10

(4) A preference shall be deemed to be given at a

relevant time, if--

(a) it is given to a related party (other than

by reason only of being an employee),

during the period of two years preceding

the insolvency commencement date; or

(b) a preference is given to a person other

than a related party during the period of

one year preceding the insolvency

commencement date.]"

16. From the aforesaid provisions, it is clear that if there is a transfer of

property or an interest thereof of the 'Corporate Debtor' for the benefit of a

creditor or a surety or a guarantor for or on account of an antecedent

financial debt or operational debt or other liabilities owed by the 'Corporate

Debtor' is transferred, then it comes within the meaning of 'preferential

transactions'. The 'preferential transactions' has the effect of putting such

creditor or a surety or a guarantor in a beneficial position than it would

have been in the event of a distribution of assets being made in accordance

with Section 53.

Company Appeal (AT) (Insolvency) Nos. 600 & 601 of 2018 11

17. As per sub-section (3) of Section 43, transfer made in the ordinary

course of the business or financial affairs of the 'Corporate Debtor' or the

'transferee' be not included within the meaning of 'preferential transactions'.

18. The question arises for consideration is whether in such case, the

transactions, in question, can be claimed to be a transfer made in the

ordinary course of business.

19. It is not the case of the Appellants that apart from the Appellants, all

other Creditors were paid their dues during the ordinary course of business.

It is only in the case of the Appellants that the amounts were released and

repaid just before a period of one year from the date of Insolvency

Commencement Date i.e., 18th July, 2017.

20. This apart, as it is not in dispute that the promoters of the 'Corporate

Debtor' hold 99.4% shareholding in 'Excello Fin Lea Limited' and 50%

shareholding in 'Tirumala Balaji Alloys Pvt. Ltd.' and rest of the 50%

shareholding of the 'Tirumala Balaji Alloys Pvt. Ltd.' is with the relatives of

the promoters of the 'Corporate Debtor' i.e. 'Rungta Family', we are of the

view that all the transactions made during the period of two years preceding

date of Insolvency Commencement Date i.e., 18th July, 2017 come within

the meaning of 'preferential transactions'.

21. For the reasons aforesaid, we are not inclined to interfere with the

impugned order dated 6th August, 2018 passed by the Adjudicating

Authority, Mumbai Bench, Mumbai.

Company Appeal (AT) (Insolvency) Nos. 600 & 601 of 2018 12

Both the appeals are dismissed. No costs.

[Justice S.J. Mukhopadhaya] Chairperson

[ Justice A.I.S. Cheema ] Member (Judicial)

[ Kanthi Narahari ] Member (Technical)

NEW DELHI 13th November, 2019

/AR/

Company Appeal (AT) (Insolvency) Nos. 600 & 601 of 2018