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TMI Blog2018 (1) TMI 1248X X X X Extracts X X X X X X X X Extracts X X X X ..... rporate Debtor. The application has been filed in Form No.1 of the Rules as prescribed under 4(1) of the Rules, giving the necessary particulars. 2. The petitioner Bank was incorporated on 31.03.1970 under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 with Head Office at 7, Bikhaji Cama Place, New Delhi and a Branch Office at MCB, Model Town, Hissar. The Respondent-Corporate Debtor was incorporated on 10.06.2009 as a company registered under Companies Act, 1956 and allotted CIN U25194HR2009PTC039191 with authorised share capital of ₹ 50 lacs and paid up capital of ₹ 37 lacs. Copy of Memorandum and Articles of Association of the respondent are at Annexure A/3. The Registered Office of the corporate debtor is at Hissar, in the State of Haryana and therefore, the matter falls within the territorial jurisdiction of this Tribunal. 3. The instant petition has been filed through Mr. Navdeep, Senior Manager of the Branch at Hissar in whose favour, the Bank has executed General Power of Attorney dated 05.11.2015 Annexure A-1. The competent authority vide letter dated 28.07.2017 Annexure A/2 has also accorded permission to the Branch Head to fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was ₹ 4,07,43,345.08. This notice (Annexure A/9) was sent to the company, its directors and others. 7. Thereafter, the Bank issued a notice to the corporate debtor under Section 13(2) of the SARFAESI Act, 2002 (Annexure A/10) dated 13.02.2015. The petitioner-bank then filed a Suit bearing OA No.519 of 2016 (old) and 2597 of 2017 (new) dated 14.03.2016 before DRT which was still pending. Annexure A/8 is the copy of that application. 8. By way of evidence in support of the claim of default committed by the corporate debtor, the petitioner-bank has relied upon various balance confirmation letters executed by the corporate debtor ranging from 07.05.2013 to 28.05.2014 which are from Annexure A/28 to A/33. The petitioner-bank has also relied upon statements of account of the corporate debtor under different loan accounts as at Annexure A/25 to A/27 which are certified under the Bankers Books Evidence Act, 1891. 9. Before filing this petition, the petitioner-bank also served Demand Notice to the corporate debtor (Annexure A/34) dated 09.02.2017 wherein the then outstanding amount as on 08.02.2017 was stated as ₹ 36833617.24. The petitioner-bank has also relied upon CI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed counsel for the parties and perused the records. 16. The primary contention of learned counsel for respondent is that the petition has not been filed by the competent officer on behalf of the Bank and there is no Power of Attorney in favour of Mr. Navdeep, Senior Manager, of the bank to initiate proceedings under the Code. The learned counsel placed reliance upon the order passed by Guwahati Special Bench of NCLT in SB Case No.01/IBC/GB/2017 in Company Petition No. 37/2017, titled ICICI Bank Ltd. Vs. Palogix Infrastructure Private Ltd In the said case, the power of attorney was issued by the ICICI Bank on 20.10.2014, on the basis of which, the petition under the Code was filed. It is submitted that the terms of power of attorney in the instant case are similar to the power of attorney as discussed in the order dated 30.03.2017 in the matter referred to Guwahati Bench by the Division Bench of NCLT Kolkata and it was held that there should be a specific authorisation for the purpose of initiating the proceedings under the Code. It would be seen that the Kolkata Bench of NCLT ultimately in the order dated 12.04.2017 pointed out the aforesaid defect to the petitioner and issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings against the debtors of the Bank, to appear and act in a court of insolvency and Liquidation Judge and before the Official Receiver and Liquidator, to file claims prove debts of the said Bank in the insolvency and liquidation Court and before the Official Receiver or Liquidator to oppose discharge of the insolvent and to collect/receive dividend declared by the insolvency or liquidator court in respect of any insolvency or liquidation case. 21. In view of the aforesaid, I find the petition to have been filed by the Bank through a competent person. 22. Sub-section (3) of Section 7 of the code says that the Financial Creditor shall along with the application furnish - (a) record of the default recorded with the information utility or such other record or evidence of default as may be specified; (b) the name of the resolution professional proposed to act as an interim resolution professional; and (c) any other information as may be specified by the Board. 23. There is no dispute that the petitioner-bank has complied with the requirements of clause (b) of sub-section (3) of section 7 of the Code inasmuch as there is written communication by the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law. 27. Insolvency and Bankruptcy Code, 2016 is a self-contained Code and the Adjudicating Authority has to be governed by these provisions. Sub-section (4) and sub-section (5) of Section 7 of the Code reads as under: - (4) The Adjudicating Authority shall, within fourteen days of the receipt of the application under sub-section (2), ascertain the existence of a default from the records of an information utility or on the basis of other evidence furnished by the financial creditor under sub-section (3). (5) Where the Adjudicating Authority is satisfied that- (a) a default has occurred and the application under sub- section (2) is complete, and there is no disciplinary proceedings pending against the proposed resolution professional, it may, by order, admit such application; or (b) default has not occurred or the application under sub- section (2) is incomplete or any disciplinary proceeding is pending against the proposed resolution professional, it may, by order, reject such application: Provided that the Adjudicating Authority shall ..... X X X X Extracts X X X X X X X X Extracts X X X X
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