2020 (10) TMI 444 - Tri - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT - On careful examination of the Board Resolution, it is clear that the Board of the Financial Creditor never authorised the Director to initiate CIRP against the Corporate Debtor but to represent the company, concerning the business affairs relating to property of the company. The Corporate Debtor has rightly argued that the present petition is filed without any authority - This Bench has consistently taken the stand that for initiating CIRP against a corporate debtor, specific board resolution is required rather than a general one. It is in the interest of justice that consistency in approach is maintained. Therefore, without proper authorisation CIRP cannot be initiated against the Corporate Debtor. As per petition, date of default is 15.05.2019. However, the first Demand Notice was issued on 06.05.2019 and the second Demand Notice was issued on 13.05.2019. Both of these dates are before the actual date of default - As per Demand Notices dated 06.05.2019 and 13.05.2019, the balance amount of ₹ 12.39 crore is to be repayable within 24 hours of receipt of the notice. We are of the view that recalling such a huge amount within 24 hours is not a normal business practice. The Financial Creditor has failed to establish that there was a debt due and payable and that a default has occurred. Further, the Financial Creditor has failed to produce proper authorisation to initiate CIRP against the Corporate Debtor. The petition also has inconsistencies and inaccurate information and documents such as the Demand Notices being issued before the date of default, the disbursement details include payment made to other companies whose relationship with the Corporate Debtor has not been established, no corresponding Bank Entry or evidence of making payment to Corporate Debtor etc. The petition fails and CIRP cannot initiated against the Corporate Debtor as prayed for.

Summary

Issues Involved:
1. Authorization by Board Resolution
2. Genuineness of Loan Agreement
3. Discrepancies in Financial Transactions
4. Validity of Demand Notices
5. Police Complaint
6. Confirmation of Balance Outstanding

Issue-wise Detailed Analysis:

1. Authorization by Board Resolution:
The Board Resolution dated 14th May 2019 authorized Mr. Easwaran Viswanathan Iyer to represent the company in various legal matters but did not specifically authorize the initiation of Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor. The tribunal emphasized the need for a specific board resolution for initiating CIRP and found the general authorization insufficient. Thus, the petition was deemed to be filed without proper authority.

2. Genuineness of Loan Agreement:
The Loan Agreement dated 02.12.2015 was questioned due to the disbursement occurring almost a month prior, on 07.11.2015. This discrepancy cast doubt on the authenticity of the transaction. Additionally, the Memorandum of Understanding (MoU) dated 23.03.2018 included clauses that further complicated the financial relationship, indicating amounts to be paid only after certain conditions were met. The tribunal found these inconsistencies problematic and indicative of unusual business practices.

3. Discrepancies in Financial Transactions:
The tribunal identified several discrepancies in the financial transactions presented by the Petitioner-Financial Creditor. Notably, certain large payments to the Corporate Debtor were missing from the provided bank statements. Additionally, payments made to other companies were included in the petition without establishing their relationship to the Corporate Debtor. The tribunal also noted irregularities in the order of transactions in the bank statements, questioning their veracity.

4. Validity of Demand Notices:
The Demand Notices dated 06.05.2019 and 13.05.2019 were issued before the alleged date of default on 15.05.2019. Furthermore, the notices demanded repayment of a substantial amount within 24 hours, which the tribunal considered an unreasonable business practice. These factors contributed to the tribunal's decision to dismiss the petition.

5. Police Complaint:
A police complaint was filed by the Financial Creditor alleging fraud by one of the Corporate Debtor’s directors. The tribunal refrained from commenting on this matter as it was under police investigation, emphasizing that the criminal investigation should proceed independently of the tribunal's findings.

6. Confirmation of Balance Outstanding:
The tribunal noted that the confirmation letters for the outstanding balance were signed by the old management of the Corporate Debtor, not the new management. This raised further doubts about the validity of the claimed debt. The tribunal also considered other issues raised by the Corporate Debtor, such as the improper handling of the loan agreement and potential violations of the Companies Act, 2013.

Conclusion:
The tribunal concluded that the Financial Creditor failed to establish the existence of a debt due and payable, and that a default had occurred. The petition was also found to contain inconsistencies and inaccuracies, including unauthorized initiation of CIRP, discrepancies in financial transactions, and premature demand notices. Consequently, the petition to initiate CIRP against the Corporate Debtor was dismissed. The tribunal clarified that its observations should not prejudice the petitioner's rights in any other judicial forum.