43. (1) Where the liquidator or the resolution professional, as the case
may be, is of the opinion that the corporate debtor has at a relevant time
given a preference in such transactions and in such manner as laid down in
sub-section (2) to any persons as referred to in sub-section (4), he shall
apply to the Adjudicating Authority for avoidance of preferential
transactions and for, one or more of the orders referred to in section 44.
(2) A corporate debtor shall be deemed to have given a preference, if-
(a) there is a transfer of property or an interest thereof of the corporate
debtor for the benefit of a creditor or a surety or a guarantor for or on
account of an antecedent financial debt or operational debt or other
liabilities owed by the corporate debtor; and
(b) the transfer under clause (a) has the effect of putting such creditor or
a surety or a guarantor in a beneficial position than it would have been in
the event of a
distribution of assets being made in accordance with section 53.
(3) For the purposes of sub-section (2), a preference shall not include the
following transfers-
(a) transfer made in the ordinary course of the business or financial
affairs of the corporate debtor or the transferee;
(b) any transfer creating a security interest in property acquired by the
corporate debtor to the extent that-
(i) such security interest secures new value and was given at the time of or
after the signing of a security agreement that contains a description of
such
property as security interest and was used by corporate debtor to acquire
such property; and
(ii) such transfer was registered with an information utility on or before
thirty days after the corporate debtor receives possession of such property:
Provided that any transfer made in pursuance of the order of a court shall
not, preclude such transfer to be deemed as giving of preference by the
corporate debtor.
Explanation.-For the purpose of sub-section (3) of this section, "new value"
means money or its worth in goods, services, or new credit, or release by
the transferee of property previously transferred to such transferee in a
transaction that is neither void nor voidable by the liquidator or the
resolution professional under this Code, including proceeds of such
property, but does not include a financial debt or operational debt
substituted for existing financial debt or operational debt.
(4) A preference shall be deemed to be given at a relevant time, if-
(a) it is given to a related party (other than by reason only of being an
employee), during the period of two years preceding the insolvency
commencement date; or
(b) a preference is given to a person other than a related party during the
period of one year preceding the insolvency commencement date.