# In the matter of Anup Kumar, R.P. of Shivkala Developers Pvt. Ltd. Vs. Shivkala Developers Pvt. Ltd. CA(AT)(Insolvency) 679,680 & 681 -2018

> NCLAT judgment dated 2019-05-02. Citation: TCN-2019-NCLAT-00597. The Resolution Professional of M/s Shivkala Developers Pvt. Ltd. (Corporate Debtor) filed…

- **Court:** NCLAT
- **Order date:** 2 May 2019
- **Citation:** TCN-2019-NCLAT-00597
- **Category:** IBC
- **Source page:** https://caseease.in/cases/ibc/nclat-new-delhi/anup-kumar-rp-of-shivkala-developers-pvt-ltd-vs-shivkala-developers-pvt-ltd-ca-1221f556

## Summary

### Background

The Resolution Professional of M/s Shivkala Developers Pvt. Ltd. (Corporate Debtor) filed three applications under Sections 45, 49, 50(5), and 66 r/w Section 25(2) of the Insolvency and Bankruptcy Code, 2016, seeking to set aside transactions entered into by the Corporate Debtor. The Resolution Professional argued that these transactions were preferential transfers carried out to defraud creditors. The Adjudicating Authority (National Company Law Tribunal), New Delhi Bench, rejected all three applications (CA No. 293/2018, 294/2018, and 295/2018) via an order dated October 3, 2018, leading to the present appeals.

## Facts

The Resolution Professional of M/s Shivkala Developers Pvt. Ltd. filed applications to set aside certain transactions, claiming they were preferential, undervalued, extortionate, or fraudulent. The Corporate Debtor, a real estate developer, had been allotted land by Noida Authority to develop a commercial complex. The Resolution Professional alleged that sale considerations in registered agreements were below circle rates, indicating undervaluation. The transactions in question included agreements to sell dated February 13, 2009, April 6, 2009, and October 31, 2009, related to floor space in the Fortune Smile commercial complex. The Adjudicating Authority rejected the applications, finding no case made out for preferential or undervalued transactions. The insolvency

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## Issues and analysis

### Issue 1: Whether the transactions entered into by the Corporate Debtor constitute preferential transactions …

**Ratio:** Section 43 of the I&B Code deals with preferential transactions and relevant time. A

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**Reasoning:** The tribunal found that the Resolution Professional did not demonstrate that the transfer

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**Interpretation:** Section 43 aims to prevent a corporate debtor from favoring certain creditors

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**Application:** The tribunal applied the ratio to the facts, noting that the respondents were

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## Parties

- **Judges:** S.J. Mukhop…
- **Appellants:** Anup Kumar,…
- **Respondents:** M/s Shivkala…; BDR Builder &…
- **Advocates:** Naveen S…; Sanjay Go…; +5 more

## Timeline

- **2009-02-13 — Agreement t…**: Agreement to sell dated 13th February, 2009, in respect of floor space in the Fortune…
- **2009-04-06 — Agreement t…**: Agreement to sell dated 6th April, 2009, in respect of floor space in the Fortune Smile…

## Legal provisions

- [Insolvency and Bankruptcy Code, 2016, Section 45 — Avoidance of undervalued transactions](https://caseease.in/legal-provisions/insolvency-and-bankruptcy-code-2016/section-45)

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