During the course of liquidation the liquidator noticed that some preferential transactions were made with some persons. What do you understand by preferential transactions? State the orders that may be passed by the Adj
CS Professional · Corporate Restructuring, Insolvency, Liquidation & Winding-up · PYQS · June 2022
During the course of liquidation the liquidator noticed that some preferential transactions were made with some persons. What do you understand by preferential transactions? State the orders that may be passed by the Adjudicating Authority in relation to the avoidance of preferential transactions.
Answer & Explanation:
Preferential transaction in reference to corporate insolvency resolution process or the liquidation process means preferential transaction made with any person within the period of one year preceding the insolvency commencement date or transaction made with a related party within a period of two years preceding the insolvency commencement date. An application may be made to the Adjudicating Authority by the Liquidator or Resolution Professional for avoidance of such preferential transaction. Section 44 of Insolvency & Bankruptcy Code, 2016 specifies the orders that may be passed by the Adjudicating Authority in relation to the avoidance of a preferential transaction. These orders are passed to reverse the effects of the preferential transaction and require the person to whom the preference is granted to pay back any gains he may have made as a result of such preference. Section 44 lays down that the Adjudicating Authority, may on an application made by the resolution professional or liquidator under sub-section (1) of section 43, by an order: require any property transferred in connection with the giving of the preference to be vested in the corporate debtor; require any property to be so vested if it represents the application either of the proceeds of sale of property so transferred or of money so transferred; release or discharge (in whole or in part) of any security interest created by the corporate director; require any person to pay such sum in respect of benefits received by him from the corporate debtor, such sum to the liquidator or the resolution professional, as the Adjudicating Authority may direct; direct any guarantor, whose financial debts or operational debts owed to any person were released or discharged (in whole or in part) by the giving of the preference, to be under such new or revived financial debts or operational debts to that person as the Adjudicating Authority deems appropriate; direct for providing security or charge of any property for the discharge of any financial debt or operational debt under the order, and such security or charge to have the same priority as a security or charge released or discharged wholly or in part by the giving of the preference; and direct for providing the extent to which any person whose property is so vested in the corporate debtor, or on whom financial debts or operational debts are imposed by the order, are to be proved in the liquidation or the corporate insolvency resolution process for financial debts or operational debts which arose from, or were released or discharged wholly or in part by the giving of the preference.
Topics: Insolvency and Bankruptcy Code (IBC)
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