9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2020 (9) TMI 1152 - Tri - Companies LawMaintainability of application - it is submitted that the application so filed by the applicant is not a corporate applicant in view of the fact that the Director has already been disqualified under Section 164 of the Companies Act, 2013 - HELD THAT - As per the record of financial creditor Central Bank of India, there are five directors. However, subsequently, when it is verified with the MCA portal it is found that the pattern and status of the Directors have been changed and the same was never been informed to the financial creditors viz. CBI. Further, Ms. Neelu Gupta was never been a Director on the Board of the applicant company and as such she cannot execute SPA in favour of Mr. Sanjay Gupta. Further, on perusal of the record it is found that no Board Resolution is ever passed by the company authorising Mr. Sanjay Gupta to file the instant application. Further, on perusal of the record it appears that Mr. Sanjay Gupta obtained Special Power of Attorney in his favour issued by Ms. Neelu Gupta flouting all the norms of the Companies Act thereby the very power given in favour of Mr. Sanjay Gupta is bad in the eye of law and as such the application is not maintainable for want of proper authorisation. Admittedly, as also matter of record that, the applicant is not a corporate applicant as per form 6, Clause 3, the applicant is not a director and is disqualified under Section 164, wherein the name and address of the Director is shown as presently, there is no Director on the Board of the Company due to disqualification under Section 164 of the Companies Act 2013 . However, clause 3 of form 6 further discloses that the list of promoters along with their address attached. On perusal of the record i.e. balance sheet as on 31.03.2016 (page 254) it is found that under the head deferred tax liability an amount of ₹ 10,34,37,089/- has been shown thereby meaning that no returns have been filed by the company. It is also a matter of record that objector banks have already initiated proceedings under RDDB Act, 1993 and SARFAESSI Act, 2002 and to install the said proceedings, the applicant has filed the instant application, so as to initiate moratorium and to get stayed the proceedings initiated by the banks. Under such circumstances, the instant application has no merits and, therefore, requires to be dismissed. Petition dismissed.
Issues Involved:
1. Maintainability of the application under Section 10 of the Insolvency and Bankruptcy Code, 2016. 2. Suppression of facts by the applicant. 3. Validity of the Special Power of Attorney and authorization to file the application. 4. Compliance with Section 10(3)(c) of the Insolvency and Bankruptcy Code, 2016. 5. Allegations of fraud and manipulation by the corporate debtor. 6. Existing proceedings under RDDB Act, 1993 and SARFAESI Act, 2002. Issue-Wise Detailed Analysis: 1. Maintainability of the application under Section 10 of the Insolvency and Bankruptcy Code, 2016: The Tribunal found that the applicant, M/S. Neesa Infrastructure Limited, was not a corporate applicant as defined under Section 5(5) of the Code. The application was filed by Mr. Sanjay Gupta, who was not a director and was disqualified under Section 164 of the Companies Act, 2013. The Tribunal noted, "the applicant is not a corporate applicant as per form 6, Clause 3, the applicant is not a director and is disqualified under Section 164." 2. Suppression of facts by the applicant: Objections were raised by SIDBI, Indian Overseas Bank, and Central Bank of India regarding the suppression of material facts. The Tribunal observed discrepancies in the list of directors and promoters provided by the applicant. The Tribunal stated, "the applicant had some mala fide intention and oblique motive... suppression of facts, the application deserves to be dismissed in toto." 3. Validity of the Special Power of Attorney and authorization to file the application: The Tribunal scrutinized the Special Power of Attorney (SPA) executed by Ms. Neelu Gupta in favor of Mr. Sanjay Gupta. It was found that Ms. Neelu Gupta was never a director and, therefore, had no authority to execute the SPA. The Tribunal concluded, "Ms. Neelu Gupta was never been a Director on the Board of the applicant company and as such she cannot execute SPA in favour of Mr. Sanjay Gupta." 4. Compliance with Section 10(3)(c) of the Insolvency and Bankruptcy Code, 2016: The Tribunal noted the non-compliance with Section 10(3)(c) of the Code, which requires a special resolution passed by shareholders or a resolution by at least three-fourth of the total number of partners. The Tribunal remarked, "there is no special resolution passed for filing the application." 5. Allegations of fraud and manipulation by the corporate debtor: SIDBI and other financial creditors alleged that the corporate debtor had manipulated its business to avoid lawful payments. The Tribunal found that the application was filed with mala fide intentions, stating, "the very purpose of filing of the instant application under section 10 is mala fide with a view to defraud the secured creditors." 6. Existing proceedings under RDDB Act, 1993 and SARFAESI Act, 2002: The Tribunal observed that the applicant filed the application to stall the proceedings initiated by the banks under the RDDB Act, 1993, and SARFAESI Act, 2002. The Tribunal noted, "objector banks have already initiated proceedings under RDDB Act, 1993 and SARFAESI Act, 2002 and to install the said proceedings, the applicant has filed the instant application." Conclusion: The Tribunal dismissed the Company Petition CP (1B) No. 61 of 2018 as not maintainable, stating, "the instant application has no merits and, therefore, requires to be dismissed." No order as to cost was made.
|
