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TMI Blog2017 (8) TMI 1371X X X X Extracts X X X X X X X X Extracts X X X X ..... and registration number of the proposed interim resolution professional are Mr. Arun Kumar Gupta, Registration No. is IBBl/1PA-001/1P-P00013/2016-2017/0037 of P-15, Bentick Street, Kolkata - 700 001. 4. The applicant has stated that he has granted certain term loan and working capital facilities to the corporate debtor from time to time which was re- structured on the terms and conditions set out under the Working Capital Consortium Agreement dated 29/ 12/2008 annexed with the application and marked C, entered into, inter alia, the Corporate Debtor, PNB and certain other lenders (collectively JLÉ) as amended by a Joint Agreements of Guarantee & Corporate both dated 29/ 12/2008, Inter Creditors Agreement dated 29/12/2008. Copies of the Working Capital Consortium Agreement dated 29/ 12/2008 annexed with the application and marked C, Joint Deed of Hypothecation dated 29/ 12/2008 annexed with the application and marked D, Common Loan Agreement dated 29/ 12/2008 annexed with the application and marked E, Joint Deed of Hypothecation for Term Loan annexed with the application and marked F, Letter of Undertaking annexed with the application and marked G, Agreement of Guarantee of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... half of the financial creditor. No authentic or authorized document has been filed to prove that the applicant is duly authorized and eligible to file the application under Sec. 7 of the Code, 2016. The power of attorney is also defective. The corporate debtor has stated that the while selecting the name of the resolution professional the financial creditor has not applied his due diligence. 11. The corporate debtor has raised the objection that enough documents are not annexed to prove in respect of the claim and also in support of the default. The statement of account is incorrect and misleading. The claim of default is misleading and contrary to Sec.3(1) of the Code, 2016. 12. The corporate debtor submitted that though debacles created by the financial creditor during the moratorium period, the corporate debtor have started its commercial production steadily. 13. The corporate debtor further submitted that the financial creditor being satisfied with the progress and viability of the corporate debtor had issued a zero percent tagging which is still in continuance appeared before this tribunal. Copy of the letter relating to zero percent tagging is annexed with the reply sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s on the fact that financial creditor has initiated a proceeding under Sec. 13(2) of the SARFAESI Act and notice issued Annexure K (page 245 of the petition). So financial creditor cannot invoke the jurisdiction under I & B Code, 2016. 17. It appears from the record that the petition has been filed by the financial creditor on the basis of authorization letter issued by the bank which is annexed with the petition from page 287 to 295. It also appears from the record that PNB has given permission letter in favor of Shri Achyut Banerjee, Chief Manager whereby authority was given for initiating corporate resolution process against Divyajyoti Sponge Iron Pvt. Ltd. under I & B Code, 2016. The said authorization letter is certified by the Bank. Applicant has also annexed with the petition the authority letter dated 23/6/2017 given in favor of Advocate to appear, conduct and argue the case which has been filed by the bank against Divyajyoti Sponge Iron Pvt. Ltd. in NCLT. Shri Achyut Banerjee who has been authorized by PNB for initiating corporate insolvency process has also authorized Advocate whose vakalatnama has been filed with the petition for making, conducting the case before NCLT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g a corporate resolution process or corporate debtor having completed corporate, insolvency resolution process 12 months preceding the date of making the application. The law has laid down the following conditions in Sec. 1 1: 11. The following persons shall not be entitled to make an application to initiate corporate insolvency resolution process under this Chapter, namely: - (a) a corporate debtor undergoing a corporate insolvency resolution process; or (b) a corporate debtor having completed corporate insolvency resolution process twelve months preceding the date of making of the application; or (c) a corporate debtor or a financial creditor who has violated any of the terms of resolution plan which was approved twelve months before the date of making of an application under this Chapter; or (d) a corporate debtor in respect of whom a liquidation order has been made. 23. Therefore, it is clear that if a person has already given notice under SARFAESI Act, then there will be no bar for initiating corporate insolvency resolution process under I & B Code, 2016. It is also pertinent to mention that I & B Code, 2016 has the overriding effect over other laws and after the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o such transactions as may be notified by the Central Government in consultation *lith any financial sector regulator. The order of moratorium shall have effect from the date of such order till the completion of the corporate insolvency resolution process. Provided that where at any time during the corporate insolvency resolution process period, if the Adjudicating Authority approves the resolution plan under sub-section (I) of Sec.31 or passes an order for liquidation of corporate debtor under Sec.33, the moratorium shall cease to have effect from the date of such approval or liquidation order, as the case may be. Necessary public announcement as per Sec. 15 of the IBC, 2016 may be made. Mr. Arun Kumar Gupta, Registration No.1BB1/1PA-001/1P-P00013/2016- 2017 / 0037 of P- 15, Bentick Street, Kolkata - 700 001 is appointed as Interim Resolution Professional for ascertaining the particulars of creditors and convening a Committee of Creditors for evolving a resolution plan. The Interim Resolution Professional should convene a meeting of the Committee of Creditors and submit the resolution passed by the Committee of Creditors. Let the copy of the order be sent to the Applicant/ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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