# In the matter of ITMA Hotels India Pvt. Ltd. IA(IBC)163-KOB-2022 in CP(IB)-30-KOB-2021

> NCLT judgment dated 2023-05-03. Citation: TCN-2023-NCLT-03475. The Resolution Professional (RP) filed an application under Section 43(1) and 60(5)(C) of the…

- **Court:** NCLT
- **Order date:** 3 May 2023
- **Citation:** TCN-2023-NCLT-03475
- **Category:** IBC
- **Source page:** https://caseease.in/cases/ibc/nclt-division-bench-court-i-chenn/itma-hotels-india-pvt-ltd-iaibc163-kob-2022-in-cpib-30-kob-2021-cbf9ce89

## Summary

### Background

The Resolution Professional (RP) filed an application under Section 43(1) and 60(5)(C) of the Insolvency and Bankruptcy Code, 2016, read with Regulation 35(A) of the IBBI (Insolvency Resolution of Corporate Persons) Regulations 2016 and Rule 11 of the NCLT Rules, 2016. The application sought directions for Respondents 1 and 2 to return amounts paid to them by Respondents 3 and 4, alleging these payments were preferential and should be available to other creditors. The CIRP was initiated on 2021-12-31. A transaction audit was conducted, revealing payments from 2020-03-16 to 2021-07-19 totaling Rs 16,08,221/- made by the Corporate Debtor to Jomer Properties & Investments Private Limited, a related company. Additionally, on 2020-09-28, Rs 40,000/- was paid to Merero

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## Facts

The Corporate Debtor, ITMA Hotels India Pvt. Ltd., underwent CIRP initiated on 2021-12-31. The Resolution Professional (RP) discovered certain transactions that appeared to be preferential in nature. A transaction audit revealed that between 2020-03-16 and 2021-07-19, the Corporate Debtor made payments totaling Rs 16,08,221/- to Jomer Properties & Investments Private Limited, a related party. Additionally, on 2020-09-28, a sum of Rs 40,000/- was paid to Merero Hotels and Resorts Pvt Ltd, also a related party. Jomer Properties & Investments Private Limited and Merero Hotels and Resorts Pvt Ltd are related parties to the Corporate Debtor, with common directors (Jose MM and Merin Jose). The RP argued that these payments were preferential transactions under Section

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## Issues and analysis

### Issue 1: Whether the respondents indulged …

**Ratio:** Section 43 of the Insolvency and Bankruptcy Code, 2016 defines preferential transactions

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**Reasoning:** The NCLT reasoned that the payments made by the Corporate Debtor to the 1st and 2nd

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

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**Application:** The NCLT applied the provisions of Section 43 to the facts of the case, noting

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## Parties

- **Judges:** Shri. P. Mo…; SHRI. SATYA…
- **Appellants:** C. A. Kizhakkekara…
- **Respondents:** ITMA Hotels India…; Jomer Properties…

## Timeline

- **2021-12-31 — CIRP Init…**: Corporate Debtor was admitted into…
- **2022-05-04 — CoC Meet…**: The CoC in its 3rd meeting held on 2022-05-04…

## Legal provisions

- [Insolvency and Bankruptcy Code, 2016, Section 43(1) — Preferential transactions and relevant time](https://caseease.in/legal-provisions/insolvency-and-bankruptcy-code-2016/section-43)

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