PNB moves US court against 'rigging' of Firestar bankruptcy auction
25 May 2018
Scam-hit Punjab National Bank (PNB) has reportedly moved a New York court seeking appointment of Chapter 11 trustee in order to safeguard assets and provide transparency and access to information in the sale of assets of bankrupt Nirav Modi firm Firestar Diamonds.
PNB, defrauded by diamond merchant Nirav Modi and his uncle Mehul Choksi to the tune of over Rs14,000 crore, moved a motion in the US Bankruptcy Court in the Southern District of New York on 23 May alleging that Modi and his team may engineer a fraud in the auction sale of Firestar Diamonds.
The bank has sought the appointment of a “trustee to serve as a responsible fiduciary who can oversee a sales process not tainted by the Modi fraud.”
The move follows the US Bankruptcy court ordering a probe into Nirav Modi’s ties with Firestar Diamond.
PNB’s latest motion seeking appointment of a Chapter 11 trustee, if granted, would clearly indicate underlying issues in the manner in which Nirav Modi’s companies — Firestar Diamond Inc, A Jaffe Inc and Fantasy Inc — filed for bankruptcy in the US.
PNB also claimed that before filing bankruptcy petition, Modi’s right hand man Mihir Bhansali was in touch with the fugitive diamantaire. Bhansali also spoke to Modi after one of his company's (A Jaffe) auction process was completed on 3 May 2018. PNB fears foul play in totally rigging the auction process to allegedly favour a company, Parag Diamonds, considered to be close to Modi.
Parag Diamonds, a New York-based company, is owned by Panna Jain and his wife Rajni Jain. Subsequently, Panna and Rajni Jain formed a company Paramount LLC in Delaware, USA to facilitate Asset Purchase Agreement (APA).
On 11 May 2018, Modi’s A Jaffe Inc and Paramount entered into an APA agreement for the purchase and sale of substantially all of the A Jaffe Inc assets.
Jain, however, claimed that none of Parag Diamonds and Paramount’s owners or employees are connected or related to Modi’s companies. He also claimed that none of the directors had direct or indirect communication with the fugitive diamantaire or his associates and that Modi or his aides did not negotiate the auction in any way.
PNB, however, suspects foul play. In a submission to the US court on 23 May, the PNB attorney said, “It was only through cross-examination of the Chief Restructuring Officer (CRO) by counsel for PNB that this Court learned of the communications between Mihir Bhansali and Modi, the communications between management and potential bidders relating to their future employment and the possible connection between family members of Modi and Mr Jain's family.”
The motion moved by the attorneys for PNB said the debtors (Nirav Modi’s company and affiliates - Firestar Diamond, Inc, Fantasy, Inc and A Jaffe Inc - all based in the US) and existing management have failed to take any serious steps to ensure that those involved in fraud and other wrongful conduct were not involved in the sale process, that employees did not engage in discussions with potential bidders that gave rise to obvious conflicts of interests, or that employees ceased their communications with Modi, the indirect majority shareholder of the debtors and a fugitive from justice.
“After the Sale Hearing, even more disturbing facts came to light, as the debtors' president, Mihir Bhansali, abruptly resigned to avoid providing information required by the court at the sale hearing and, through his counsel, informed the court that if called to testify he would invoke his Fifth Amendment right against self-incrimination,” PNB attorneys submitted in the court.
Bhansali, a resident of 23 Park Avenue, New York, was one of the directors of Nirav Modi Limited, UK before he was removed on 9 March 2018. He is also listed as an employee of Modi-owned Firestar Diamond USA, which has filed for bankruptcy. He was made president and sole director of the debtors when Firestar Diamond filed petition for bankruptcy, but he abruptly resigned triggering suspicion that Modi and his group was trying to plot some conspiracy.
PNB’s attorney has also told the US court that Modi transferred the money garnered through fraudulent Letters of Undertaking (LoU) to other companies abroad. “These funds should have been dispersed to the ‘exporter/beneficiary’ to finance the import of goods into India; however, funds were dispersed to other Modi entities instead of to third-party exporters/suppliers and were not used for bona fide import/export purposes,” the submission further stated.
PNB has also revealed to the US court that other funds were used to pay exporters for purported import transactions of semi-precious and precious stones that according to a preliminary analysis are unsupported by any documentation (eg, key documents are missing from Indian customs authority records) and often involve shell companies affiliated with Modi and his associates. PNB suspects that in many instances the proceeds of the fraudulent LOUs were routed back to Modi and the Modi entities without ever being used for the import of semi-precious or precious stones.
PNB's attorneys claimed in the US court that debtors were engaged in frequent business dealing with affiliates like Firestar International Limited, Firestar Diamond International Private Limited and Firestar Diamond FZE, which are prima facie beneficiaries of Modi fraud. These suspect entities allegedly hold more than $7 million in claims against the debtors, which suggests that the Nirav Modi’s company was engaged in highly suspect transactions with affiliate entities, which could be just round tripping of money.
“The debtors also have numerous relationships with exporters and importers associated with Modi and the related fraud. According to the debtors' schedules, the total amount owed to certain suspect exporters and importers is approximately $6.5 million. In fact, A Jaffe's two largest creditors, Pacific Diamonds FZE and Tri Color Gems, are named as the "exporter/beneficiary" on LOUs already identified as fraudulent. These facts, along with other facts disclosed in PNB's prior filings with this court, strongly suggest that the debtors were involved in the Modi fraud,” PNB attorneys claimed.
Questions are also being raised about the involvement of another trusted lieutenant of Nirav Modi -- Ajay Gandhi, who is Chief Financial Officer (CFO) of Fire Star Diamond and till March 9 2018 served as one of the Directors of Nirav Modi Limited UK.
On 23 March, 2018, Modi’s men filed a motion requesting the US court for the sale of all the assets and a hearing to consider approval of the proposed sale. The auctions for the assets of Firestar and Modi’s another subsidiary firm Fantasy Inc were later adjourned to a date to be determined.
Requesting the court for appointment of a trustee to oversee the sale process and ensure Nirav Modi does not manipulate it.
“This Court, PNB, and other parties in interest should not be forced to worry that every single action taken by the Debtors may be tainted by fraud. The integrity of the US bankruptcy process should not be an open question,” PNB submission in the US court said.