Section – 44 of Insolvency and Bankruptcy Code 2016
[ Comes into Force w.e.f 15.12.2016 vide Notification No S.O. 3687(E) Dated 09.12.2016 ]
Order in case of preferential transactions.
44. (1) The Adjudicating Authority, may, on an application made by the resolution professional or liquidator under sub-section (1) of section 43, by an order :
|(a)||require any property transferred in connection with the giving of the preference to be vested in the corporate debtor;|
|(b)||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;|
|(c)||release or discharge (in whole or in part) of any security interest created by the corporate debtor;|
|(d)||require any person to pay such sums in respect of benefits received by him from the corporate debtor, such sums to the liquidator or the resolution professional, as the Adjudicating Authority may direct;|
|(e)||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;|
|(f)||direct for providing security or charge on 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|
|(g)||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:|
Provided that an order under this section shall not—
|(a)||affect any interest in property which was acquired from a person other than the corporate debtor or any interest derived from such interest and was acquired in good faith and for value;|
|(b)||require a person, who received a benefit from the preferential transaction in good faith and for value to pay a sum to the liquidator or the resolution professional.|
Explanation I.—For the purpose of this section, it is clarified that where a person, who has acquired an interest in property from another person other than the corporate debtor, or who has received a benefit from the preference or such another person to whom the corporate debtor gave the preference, —
|(i)||had sufficient information of the initiation or commencement of insolvency resolution process of the corporate debtor;|
|(ii)||is a related party,|
it shall be presumed that the interest was acquired or the benefit was received otherwise than in good faith unless the contrary is shown.
Explanation II.—A person shall be deemed to have sufficient information or opportunity to avail such information if a public announcement regarding the corporate insolvency resolution process has been made under section 13.