Anil Anchalia vs Aniruddha Mukherjee

Per Shri Harish Chander Suri, Member (T).

This application under Sections 66 & 67 of the Insolvency & Bankruptcy Code, 2016 has been filed by Mr. Anil Anchalia, the Resolution Professional appointed by this Tribunal vide order dated (10^{\text{th}}) December, 2018 against the Promoter and Director of the Corporate Debtor Sri Aniruddha Mukherjee.

It is submitted that the Applicant/Resolution Professional had complied with the provisions of the Code and had diligently tried to obtain control over the affairs, assets, books of accounts and other documents of the Corporate Debtor and for that purpose had visited the factory premises of the Corporate Debtor and made the promoters, Directors etc. of the Corporate Debtor to take over the affairs and its assets, books and documents of the Company. But, they flatly and squarely refused to provide any cooperation in the resolution process.

It is further submitted that on the request of the Applicant, this Tribunal had issued categorical directions in its order dated (11^{\text{th}}) January, 2019, directing the Respondent to cooperate with the Applicant but in spite of the directions, the Respondent did not hand over the cash balance, cash books, cheque books, bank books and other records in complete violation of the order of this Tribunal, compelling the Applicant to file an application under Section 70 of the Insolvency and Bankruptcy Code, pursuant to which an order dated 5th March, 2019 was passed directing the Respondent to hand over all statutory records inclusive of books of accounts of the Applicant preferably within 7 days.

It is submitted that the Respondent has not as yet handed over the aforesaid record. In the meanwhile, the Applicant came to know on 17th February, 2019 that during the period 10th December, 2018 to 16th January, 2019 i.e. during the Corporate Insolvency Resolution Process period, the Respondent had unauthorisedly withdrawn an aggregate amount of Rs. 13,80,000/- (Rupees Thirteen Lacs Eighty Thousand Only) from the account of the Corporate Debtor maintained with Uco Bank, New Alipore Branch A/c. No. 01790210000670. The Applicant further came to know that on 4th January, 2019 the Respondent had earlier also withdrawn an amount of Rs. 77,000/- (Rupees Seventy Seven Thousand Only) towards payment of his personal credit card dues from the account of the Corporate Debtor maintained with Kotak Mahindra Bank, Harish Mukherjee Road Branch having Account No. 2011600705 that too during the CIRP period of 10.12.2018 to 13.12.2018. So, the Respondent is stated to have unauthorisedly withdrawn a sum of Rs. 14,57,000/- from the Bank Account of the Corporate Debtor with an intention to defraud the creditors.

The Applicant further submits that the Applicant has issued necessary instructions to the Bank of the Corporate Debtor not to allow operation of those accounts by the Respondents. The Applicant has thus prayed that this Tribunal might issue directions to the Respondent to immediately refund the amount of Rs. 14,57,000/- along with interest, at the rate of 18% per annum from the date of such withdrawals and also furnish an affidavit of his personal assets so that directions u/s 67 might be issued by this Tribunal creating a charge on such assets. It is worthwhile to mention here that in reply to this application, the Corporate Debtor has, in para 5 (vi) admitted the averments/allegations of the Applicant in the following :-

From the above said reply of the Respondent, it can very well be inferred that the Respondent has very candidly admitted that the amount withdrawn by the Respondent was utilized for the benefit of the Company and the statement marked Annexure-R6 would justify such utilization.

Be that as it may, the fact of the matter is that the moratorium had been ordered by the Tribunal in its order dated (12^{\text{th}}) December, 2018 on which the Interim Resolution Professional had also been appointed who was later confirmed as Resolution Professional by Committee of Creditors in its meeting dated (20^{\text{th}}) February, 2019 and any dealing with any property movable or immovable or Bank Accounts relating to the Corporate Debtor, by any of its Directors or Employees, would be against the provisions of the Code.

The Respondent is stated to have disregarded the provisions of the Code as also the directions issued by this Tribunal for which the Applicant had to rush to the Tribunal to seek orders from time to time. The audacity of the Respondent firstly to withdraw the amount from the account of the Corporate Debtor and branding the same as having been utilized for the benefit of the Company is another violation of the orders of this Tribunal which needs to be reprimanded and taken note of.

In view of the aforesaid discussions and clear cut admission of the Respondent in so many words, we are inclined to allow this application upon the following orders: