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2023 (3) TMI 21 - AT - Insolvency and BankruptcySeeking direction to refer the matter to conciliation - Petition admitted u/s 7 of IBC - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial creditors - existence of debt and dispute or not - HELD THAT - The reasons assigned by the Adjudicating Authority is fully agreed upon, whereby objection raised by the Respondent (before the Tribunal) / Appellant so far authorized representative of the Financial Creditor is concerned, the Adjudicating Authority rightly found that on 18.10.2019 a board resolution was passed by Invesco Trustee Pvt. Ltd., whereby, Ms. Nupur Tainwala, Assistant Vice President-Legal of Invesco Asset Management (India) Pvt. Ltd. is authorised to file any case/suit etc. before any court of law, tribunal, quasi-judicial process etc. which contained the detail power/authorization provided to Ms. Nupur Tainwala by one Ms. Deepti Dave being authorized signatory of Invesco Trustee Pvt. Ltd. There are no merit in the Appeal to interfere with the order impugned passed by the Adjudicating Authority - impugned order affirmed - appeal dismissed.
Issues Involved:
1. Validity of the insolvency application filed by the Respondent No. 1. 2. Authority of the person filing the insolvency application. 3. Existence of debt and default. 4. Interim applications filed by the Corporate Debtor. 5. Procedural compliance during the pronouncement of the order. Detailed Analysis: 1. Validity of the Insolvency Application Filed by the Respondent No. 1: The Appellant challenged the validity of the insolvency application on the grounds that it was not filed by the trustee of the fund or the debenture holder itself but by Ms. Nupur Tainwala, Assistant Vice President-Legal of Invesco Asset Management (India) Pvt. Ltd., who does not hold any position with Invesco Trustee Private Limited. The Appellant argued that this manner of filing is not permitted as per the precedent set in "Palogix Infrastructure Pvt. Ltd. V. ICICI Bank Ltd., 2017 SCC OnLine NCLAT 266," which requires the person filing the application to be an authorized representative of the financial creditor and hold a position in relation to the financial creditor. 2. Authority of the Person Filing the Insolvency Application: The Respondent No. 1 contended that the Section 7 application was filed pursuant to a board resolution of the trustee of the Fund, authorizing Ms. Nupur Tainwala to file the application. The Respondent argued that the powers of the debenture trustee do not preclude the beneficial owners of the debentures from filing proceedings in rem, such as CIRP against the debtor. The Respondent also cited the authority granted under the Investment Management Agreement dated 27th April 2006, which allows the Asset Management Company to manage the assets of the Mutual Fund Scheme and file petitions on behalf of the Fund. 3. Existence of Debt and Default: The Adjudicating Authority found that there was a clear existence of "debt" and "default," which had been acknowledged by the Corporate Debtor. The Financial Creditor had provided sufficient documentation evidencing the default, including the issuance of 150 secured non-convertible debentures and the default on the due date of the principal amount and interest. 4. Interim Applications Filed by the Corporate Debtor: The Corporate Debtor had filed applications seeking to take its reply on record and to refer the Section 7 petition to conciliation. The Adjudicating Authority dismissed these applications, noting that they were attempts to delay the proceedings. The Tribunal affirmed that the Adjudicating Authority is not required to hear pre-admission interim applications and should focus on passing an order of admission or rejection. 5. Procedural Compliance During the Pronouncement of the Order: The Appellant argued that the cause list for the pronouncement of the order was not sufficiently notified as per the NCLT Rules, 2016. However, the Tribunal found that the additional cause list was sufficiently notified, and the presence of the Advocate for Respondent No. 1 during the pronouncement indicated proper notification. The Tribunal concluded that there was no insufficiency of notice or impropriety in the process. Conclusion: The Tribunal agreed with the Adjudicating Authority's findings and dismissed the appeal. The order dated 06.04.2021 admitting the insolvency petition against the Corporate Debtor was affirmed. The Tribunal found no merit in the Appellant's arguments and upheld the Adjudicating Authority's decision, emphasizing the existence of debt and default, and the proper authorization for filing the insolvency application. The appeal was dismissed with no order as to costs.
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