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Judgment
ORDER
PER: SHRI L. N. GUPTA, MEMBER (T)
The present proceeding is arising out of Suo-Motu action taken by this Adjudicating Authority vide order dated 17.05.2022 passed in the matter of Zoom Communication Pvt. Ltd. Vs Par Excellence Real Estate Pvt. Ltd., wherein the show cause notice was issued to M/s Zoom Communications Pvt. Ltd (hereinafter, referred to as Respondent No.1), Par Excellence Real Estate Pvt. Ltd. (hereinafter, referred to as Respondent No.2) and Mr. Gulshan Kumar Jhurani (hereinafter, referred to as Respondent No.3), as to why the penalty stipulated under Section 65 of IBC, 2016 shall not be imposed upon them.
To put succinctly, the facts of the case are that the Operational Creditor, M/s Zoom Communications Pvt. Ltd. had filed an Application bearing No. (IB)-616(ND)2020 under Section 9 of IBC, 2016 for initiation of Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor namely, Par Excellence Real Estate Pvt. Ltd. This Adjudicating Authority, vide order dated 17.05.2022, had dismissed the said Application and issued a show cause notice to the Applicant, Respondent and Common Director of both the Companies i.e., Sh. Gulshan Kumar Jhurani.
The said order dated 17.05.2022 was challenged by the Respondent No.1 i.e., M/s Zoom Communications Pvt. Ltd. before the Hon’ble NCLAT in Comp. App. (AT) (Ins.) No. 619 of 2022, which vide order dated 27.07.2022, while affirming the order of this Adjudicating Authority, dismissed the Appeal with the certain direction to this Adjudicating Authority. The relevant extracts of the order are reproduced below -
“9.We in the present case are considering the initiation of the CIRP, the Adjudicating Authority had sufficient reason to believe that debt itself is doubtful. No error has been committed by the Adjudicating Authority in refusing to initiate the CIRP on such suspicious debt. Thus, the order of the Adjudicating Authority refusing to initiate CIRP cannot be faulted and we affirm the said order passed by the Adjudicating Authority.
10.Now, we come to the submission of the Counsel for the Appellant regarding show-cause notice under Section 65(1) of the IBC. The notice has been issued consequent to the impugned order passed, to which the parties were entitled to file reply. Learned Counsel for the Appellant submits that the Appellant has already filed a Reply to show-cause notice and Learned Counsel for the Respondent submits that he has also filed a Reply to the show-cause notice. Order under Section 65 after considering the show-cause notice are yet to be passed by the Adjudicating Authority. We only observe that while passing the order under Section 65, the Adjudicating Authority shall consider the Reply given by the Respondent and shall not be influenced by any observation made in the impugned order.
11.Subject to the above observations, the Appeal is dismissed.”
The Respondents have filed their replies to the show cause notice. Therefore, we would like to examine their contentions.
At first, we deal with the contentions of Sh. Gulshan Kumar Jhurani/the Respondent No.3, who was the common Director in the Respondent No.1 and No.2 during the period, when the said transaction occurred, basing on which the Section 9 Application was filed.
That Sh. Gulshan Kumar Jhurani/Respondent No.3 has submitted the following -
The Noticee was a Director in M/s. Zoom Communications Ltd. from 01.06.2010 to 07.08.2017 and in M/s. Par Excellence Real Estate Pvt. Ltd. from 03.09.2014 to 09.01.2017. This fact has also been noted by this Tribunal in the judgment dated 17.05.2022.
The subject insolvency proceedings were initiated by the Respondent No.1 by way of issue of demand notice dated 31.01.2020 under the authority of one Mr. Indrajeet Agarwal, which was subsequently followed by a petition u/s 9 of the IBC viz., “Zoom Communications Limited v/s Par Excellence Real Estate Pvt. Ltd.” [CP No. (IB)-616 (ND) 2020] under the authority of Mr. Anil Malhotra.
The said petition was resisted by the Corporate Debtor by way of a reply dated 11.09.2020 under the authority of Mr. Amit Rajoria.
Pertinently, the Noticee, after resignation from directorship of both the Respondent No.1 and the Corporate Debtor (Respondent No.2) companies on 07.08.2017 and 09.01.2017 respectively and has held no position and was not involved in the functioning of the companies. Further, he was not privy to any documents pertaining to the working of the companies, much less any communication exchanged between the Respondent No.1 and the Corporate Debtor. In fact, and in law, the Noticee was in no position to influence the working or the decision making of either of the parties in the said proceedings.
It is categorically asserted that the Noticee had absolutely no role to play in the initiation of the insolvency proceedings, in fact when the demand notice was issued by the Respondent No.1 to the Corporate Debtor, the Corporate Debtor brought it to the notice of the Noticee. The Noticee advised the Corporate Debtor to oppose the case filed by the Respondent No.1 and also urged them to file a response to the demand notice as the amount itself was also not payable.
In any event, penalty u/s 65 (1) of IBC, 2016 can be attracted when the intent for initiation of resolution process has been done fraudulently, maliciously or for any purpose other than for the resolution of insolvency, however, in the instant case, since the Noticee is not associated in any way with the aforesaid companies, there is absolutely no benefit which can accrue to the Noticee through these proceedings. Furthermore, the penalty u/s 65 of IBC, 2016 can be imposed on the person initiating the insolvency resolution process with such intent, and in the instant case, the Noticee is not that person, is not even a party to the proceedings and nor has he been associated with the companies involved since 2017, therefore the question of any collusion does not arise. Nor is there any such allegation in the pleadings of the case.
We have heard the submissions on behalf of Sh. Gulshan Kumar Jhurani/Respondent No.3. The main contention raised by him is that he had resigned from the post of Director in Respondent No. 1 and 2 Companies in the year 2017. Further, he has asserted that he is not involved in the functioning any of the companies since then. Further, he has stated that he is in no position to influence the working or the decision making of either of the Company in the said proceedings. In view of the same, he has prayed that penalty under Section 65 of IBC, 2016 shall not be imposed against him.
It is observed that on the one hand, the Respondent No.3 has submitted that he is not associated with any of the Respondent Company, on the other hand, he has submitted that when the demand notice was issued by the Respondent No.1 to the Corporate Debtor, the Corporate Debtor brought it to the notice of the Respondent No.3, who in turn, advised the Corporate Debtor to oppose the case filed by the Respondent No.1 and also urged them to file a response to the demand notice as the amount itself was also not payable. Thus, evidently the Respondent No.3 is blowing hot and cold at the same time.
At this juncture, we refer to Section 5(24)(h) of IBC 2016, which reads as below:
“(24)“Related party”, in relation to a corporate debtor, means-..
(h)any person on whose advice, directions or instructions, a director, partner or manager of the corporate debtor is accustomed to act;”
Since, it is admitted by the Respondent No.3, who is the Ex Director of the Respondent No.2 Company, that it was advising the Corporate Debtor, therefore, it cannot be completely ruled out that he was having no control over the present Section 9 proceedings. However, we would still like to examine whether any case of imposing penalty is made out against the Respondent No.3.
At this juncture, we refer to Section 65 of IBC, 2016, which is reproduced below:
“65. Fraudulent or malicious initiation of proceedings. –
(1)If, any person initiates the insolvency resolution process or liquidation proceedings fraudulently or with malicious intent for any purpose other than for the resolution of insolvency, or liquidation, as the case may be, the Adjudicating Authority may impose upon such person a penalty which shall not be less than one lakh rupees, but may extend to one crore rupees.
(2)If, any person initiates voluntary liquidation proceedings with the intent to defraud any person, the Adjudicating Authority may impose upon such person a penalty which shall not be less than one lakh rupees but may extend to one crore rupees [(3) If any person initiates the pre-packaged insolvency resolution process— (a) fraudulently or with malicious intent for any purpose other than for the resolution of insolvency; or (b) with the intent to defraud any person, the Adjudicating Authority may impose upon such person a penalty which shall not be less than one lakh rupees, but may extend to one crore rupees.…”
On perusal of the contents of Section 65 of IBC 2016 as reproduced above, it can be observed that, inter alia, penalty can be imposed on a Person, who initiates the Insolvency Resolution Process fraudulently or with malicious intent for any purpose other than for the resolution of insolvency.
Here, we refer to the definition of ‘initiation date’, which is defined under Section 5(11) of IBC, 2016 as given below:
“(11)initiation date” means the date on which a financial creditor, corporate Respondent No.1or operational creditor, as the case may be, makes an application to the Adjudicating Authority for initiating corporate insolvency resolution process [or pre-packaged insolvency resolution process, as the case may be];
From the conjoint reading of Section 5(11) and Section 65 of IBC, 2016, it can be inferred that there are two necessary conditions to attract provisions of the Section 65 of IBC, 2016 against an Applicant of Section 7, 9 or 10, as the case may be. One is that an application must be filed to trigger CIR Process and the other one is that it should be filed with malicious intent for any purpose other than for the resolution of insolvency, or liquidation, as the case may be….
As it emerges from the fact, during the period, when the Application under Section 9 of IBC, 2016 was filed by the Respondent No.1, the Respondent No.3 (Sh. Gulshan Kumar Jhurani) was not the Director in M/s Zoom Communications Pvt. Ltd. Hence, he cannot be considered the person, who had initiated the insolvency proceedings against the M/s Par Excellence Pvt. Ltd. We also take note of the fact that Respondent No.2, who was the Corporate Debtor, in the proceedings filed under Section 9, has not preferred the Application, as it was a respondent therein. Hence, in our considered view, the ingredients of Section 65 of IBC, 2016 are not fulfilled against Respondent No.2. and 3 Accordingly, we drop the proceedings against Respondent No.2 and 3 on this technical aspect.
Now, we would like to examine the contentions of the Respondent No.1/Zoom Communication Pvt. Ltd., which has submitted the following –
The Respondent No. 1 and 2 Companies were not related party to each other. It has stated that the following persons were Directors in M/s. Zoom Communication Pvt. Ltd. since its incorporation:
The details of the Directors during the period i.e., when the transaction occurred between the parties, on the basis of which Section 9 application was filed, are as follows:
It has further submitted that the finding of this Adjudication Authority vide order dated 17.05.2022 that Mr. Gulshan Kumar Jhurani procured a loan for one of his company and his other company raised an invoice for the same, is wrong, as from the table as reproduced above it is clear that there were other two Directors in the Respondent No.1 as Company M/s. Zoom Communications Pvt. Ltd., at the relevant period of time, namely Mr. Vaseem Dehlvi and Mr. Alok Sharma and further, from the balance sheet of the Respondent, which is on record, it can be seen that Mr. Gulshan Kumar Jhurani was not the only Director.
It is further stated by the Respondent No. 1 Company that the finding in the order dated 17.5.2022 that Mr. Gulshan Kumar Jhurani was a Director for the uninterrupted period 27.3.2006 to 7.8.2017 is incorrect as his Directorship in the Respondent No.1 Company ended on 30.3.2008, when he resigned and then, he was appointed as Director again on 01.06.2010 till 07.08.2017.
Sh. Gulshan Kumar Jhurani was not holding requisite shares in M/s Zoom Communications Pvt. Ltd., which could categorise the Respondent No.1 as a related party to the Respondent No.2 in terms of Section 5(24)(d) of IBC, 2016.
The Companies having more than one shareholders/Director and therefore, having one Director as common Director does not make all transactions between two independent companies questionable or sham.
It is also submitted that a cost of Rs.2,00,000/- (Rupees Two Lacs) Only has already been imposed on the Applicant Company, while the application under Section 9 was dismissed, and therefore, any further penalty imposed under Section 65 is akin to be punished twice in the particular factual matrix.
After hearing submissions made by the Ld. Counsel on behalf of the Respondent No.1 and considering its reply, it is observed that the it (i.e., R-1) has contended that the finding of this Adjudicating Authority vide order dated 17.05.2022, declaring the transaction between the parties as sham, was erroneous. Further, it has stated that the R-1 and R-2 were not “related party” to each other.
At this stage, we observe that it is a matter of fact that the R-1 has challenged the order of this Adjudicating Authority dated 17.05.2022, which has been upheld by the Hon’ble NCLAT. Further, the Hon’ble NCLAT was also of the opinion that both the Operational Creditor (R-1, herein) and the Corporate Debtor (R-2, herein) were the Applicants in respect of the said transaction and the debt of Respondent No.1 is doubtful. At the cost of repetition, we would like to refer to the relevant extract of the order of the Hon’ble NCLAT in Comp. App. (AT) (Ins.) No. 619 of 2022, which reads as below:
“7.The loan sanction order which has been placed before us indicates that along with the Corporate Debtor who was Applicant for the loan, the Director of the Operational Creditor Mr. Jhurani was also co-applicant. Thus, when both the Operational Creditor and the Corporate Debtor were Applicants, we fail to see that how the Operational Creditor can claim payment of fee for procuring the loan.” …….
“9.We in the present case are considering the initiation of the CIRP, the Adjudicating Authority had sufficient reason to believe that debt itself is doubtful. No error has been committed by the Adjudicating Authority in refusing to initiate the CIRP on such suspicious debt. Thus, the order of the Adjudicating Authority refusing to initiate CIRP cannot be faulted and we affirm the said order passed by the Adjudicating Authority.” (Emphasis placed)
In view of the Judgement of the Hon’ble NCLAT (supra), the finding that the Transaction was sham and the debt of the Respondent No.1 Company is doubtful, remains unaltered and has attained finality.
Though it is a matter of fact, that the Respondent No.3 was a common Director in both the companies (i.e., R-1 and R-2) during the period of transaction, we are unable to accept the plea that the finding, that the Respondent No.3 procured a loan for one of his Company and his another company raised an invoice for the same, is wrong, as the Respondent No.3, being the Director of the both the Companies was vested with the managerial powers and had no legal disability to undertake such a decision/transaction on behalf of the Companies.
The R-1 Company has produced its Balance Sheet to demonstrate that the R-3 was not holding the requisite number of shares, in terms of Section 5(24)(d) i.e., more than 2%, which could make the R-1 Company as a related party to R-2 Company. The relevant extracts of the Balance Sheet of the R-1 Company are reproduced below -
On perusal of the above, it is seen that one Mr. Rashmi Kant was holding 99.83% shares in the R-1 Company.
In our considered view, provision under Section 5(24)(d) of IBC, 2016, is not the sole criteria to test whether the parties are related. It is a matter of fact that Mr. Gulshan Kumar Jhurani (R-3) was Director in both the companies, when the transaction took place. Therefore, in the light of this fact, Mr. Gulshan Kumar Jhurani, the Director of M/s Zoom Communication Pvt. Ltd.(R-1), was advising the Corporate Debtor (R-2). This is further confirmed from the following finding of the Hon’ble NCLAT in Comp. App. (AT) (Ins.) No. 619 of 2022:
“7.The loan sanction order which has been placed before us indicates that along with the Corporate Debtor who was Applicant for the loan, the Director of the Operational Creditor Mr. Jhurani was also co-applicant. Thus, when both the Operational Creditor and the Corporate Debtor were Applicants, we fail to see that how the Operational Creditor can claim payment of fee for procuring the loan.” (Emphasis Supplied)
Though the R-1 has justified that it is not a related party to the R-2 in terms of Section 5(24)(d) of IBC, 2016, at the time when the transaction occurred, however, it has not been able to justify as to how they are not a related party in terms of the Section 5 (24)(h) as of IBC, 2016. At this stage, we again refer to the provision under Section 5(24)(h) of IBC, 2016, which read as below:
“(24)“Related party”, in relation to a corporate debtor, means-..
(h)any person on whose advice, directions or instructions, a director, partner or manager of the corporate debtor is accustomed to act;”
Further, as per its own Balance Sheet on record of the Corporate Debtor M/s. Par Excellence Real Estate Pvt. Ltd., which relates to the period when the transaction occurred, not only the R-1 (M/s Zoom Communications Pvt. Ltd.) is demonstrated as its “related party” but also the Respondent No.3 (Gulshan Kumar Jhurani) is also shown as the “related party” in the transactions with the R-2 (M/s. Par Excellence Real Estate Pvt. Ltd.). The relevant portion of the Balance Sheet is reproduced below, for the sake of convenience:
From the above, it is evident that the document, (which is a part of the balance sheet of the R-2 : M/s. Par Excellence Real Estate Pvt. Ltd.) has been signed, inter-alia, by the R-3, Mr. Gulshan Kumar Jhurani, as Director. Further, from the records, it is also seen that the Balance Sheet of R-1 : M/s Zoom Communications Pvt. Ltd. for the FY ending 31.03.2016 is also signed by the R-3, Mr. Gulshan Kumar Jhurani, as Director. The relevant extracts of the Balance Sheet of the Respondent No.1 are reproduced below:
Hence, it is evident that the R-3, being the Director of the Corporate Debtor (R-2) was actively involved in managerial decisions like signing the balance sheets of both the R-1 & R-2 and the R-1 has failed to demonstrate otherwise as to how Mr. Gulshan Kumar Jhurani (the R-3) Director of the R-2 Company was not accustomed to act on the directions of the R-1 i.e., M/s Zoom Communications Pvt. Ltd. and its Directors/Board Members during the period when the transaction occurred. Hence, in view of the discussion above, in our considered view, R-1 and R-2 are related parties in terms of Section 5(24)(h) of IBC, 2016 and the balance sheet of the Corporate Debtor on record.
Since the Penalty of Rs. 2 Lakhs has already been imposed and paid by the Respondent No.1, therefore, taking a lenient view, this Bench is not inclined to impose any further penalty. However, all the Respondents are warned to not to repeat such acts in future.
With the aforesaid observations, we drop the proceeding initiated under Section 65 of IBC, 2016 against the Respondent No.1.