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TMI Blog2018 (5) TMI 173X X X X Extracts X X X X X X X X Extracts X X X X ..... olution Professional’. - Company Appeal (AT) (Insolvency) No. 24 of 2018 And Company Appeal (AT) (Insolvency) No. 52 of 2018 - - - Dated:- 26-3-2018 - Mr. S.J. Mukhopadhaya And Mr. Bansi Lal Bhat, JJ. For The Appellant : Dr. U.K. Chaudhary, Senior Advocate with Mr. Abhay Jadeja, Ms. Shruti Katakey, Mr. Himanshu Vij, Ms. Manisha Chaudhary, Mr. Abhishek Kumar, Mr. Amish Tandon, Ms. Samridhi Gogia, Mr. Jay Zaveri and Mr. Ayush Beotra, Advocates. For The Respondent : Mr. Arun Kathpalia, Senior Advocate with Ms. Pooja Kshivsagar and Mr. Hridhay Khurana, Advocates. JUDGMENT SUDHANSU JYOTI MUKHOPADHAYA, J. In both the appeals as common question of law is involved and have been preferred against common judgment dated 15th December, 2017 passed by the Adjudicating Authority (National Company Law Tribunal) Mumbai Bench, Mumbai in Company Petition Nos. 1371 1372/I BP/NCLT/MAH/2017, they were heard together and are being disposed of by this common judgment. 2. Standard Chartered Bank Limited ( Financial Creditor ) filed an application under Section 7 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as I B Code ) against Ruchi Soya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bankruptcy Code is applicable to the Agreement for ECB facility said to have been governed by English Law or not? 7. Similar objection was raised in the case of DBS Bank Limited . However, except the first question relating to Power of Attorney and maintainability of applications under the signatures of Mr. Pallav Sangal and Mr. Pankaj Jain, learned Senior Counsel has not pressed nor argued any other issue in these appeals. 8. Learned Senior Counsel appearing on behalf of the Appellant submitted that the Power of Attorney holder cannot file application under Section 7 of the I B Code (In Form 1). Reliance has been placed on decision of this Appellate Tribunal in Palogix Infrastructure Private Limited Vs. ICICI Bank Limited──Company Appeal (AT) (Insolvency) Nos. 30, 37 54 of 2017 . 9. In the case of Standard Chartered Bank Limited, learned Senior Counsel referred to Form-1 to show that Mr. Pallav Sangal, Team Leader, Group Special Assets Management has signed Form-1 and submitted that he was not the authorised person to sign the application. 10. Learned Senior Counsel appearing on behalf of the Respondent- Standard Chartered Bank Limited ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Bankruptcy Code, 2016 (the IBC ) and for such purpose to sign any pleadings, execute or attest plaints, petitions, appeals or other petitions for review or revision and other documents that may be necessary therefore and to verify the same, to swear to affidavits and to defend any suit, action, petition or proceeding that may be filed against the bank in any court, tribunal, forum or before any authority and prosecute or defend to the highest court of appeal or review, revision or reference and to do and execute all such acts and things as may be requisite and/or become necessary in that behalf: e) accept service of summons, notices, processes or other papers in respect of such suits, actions, petitions and other proceedings and also to file caveats and all other applications in connection therewith. f) retain and remunerate Advocates, Solicitors, Attorneys, or other agents (which, for the avoidance of doubt, shall include, but are not limited to, the retention of any insolvency professional pursuant to the IBC) on behalf of the bank for the above matters and to sign, give and deliver all mandates, vakalatnamas all such authorizations as may be necessary for the ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orporated in England by Royal Charter, with reference number ZC18, and whose principal office is at 1 Basinghall Avenue, London, EC2V 5DD, do hereby appoint Zarin Daruwala, presently employed as Chief Executive Officer, India to be out true and lawful attorney ( the Attorney ) to manage and conduct our business and affairs and to sign or execute and deliver in our name and on our behalf any deed, agreement, instrument or other document relating to the business and affairs of the Bank and without limiting the generality of the foregoing authority we declare that our Attorney shall have full power to do, perform and concur in all or any of the following acts and things: 1. To receive moneys on deposit, current account or otherwise, with or without allowance of interest, and otherwise to borrow, raise or take up money and to lend or advance money or grant or provide credit or financial accommodation, with or without security, to such persons and on such terms as may be deemed expedient. 2. To issue letters of credit, circular notes, certificates of deposit, bills, drafts and other instruments and securities, whether to bearer or otherwise, and whether providing for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igations or securities and the payment of dividends and premiums on, and the repayment of the capital of, stocks and shares of all kinds and descriptions. 8. To make, sign or execute and deliver discharges, releases, transfers, release of mortgage reconveyances, reassignments, release of debentures, withdrawal of caveat and other instruments of like nature in respect of the total or partial satisfaction of any security favouring us. 9. To make, sign or execute and deliver all contracts, receipts, deeds conveyances, charges, transfers, mortgages, assurances, assignments, caveats, documents and instruments of whatsoever nature. 10. To execute the right to foreclose, sell, and dispose of all lands, houses, buildings, goods merchandise and property of every description mortgaged to us or given to us as security and also to enforce any rights or remedies incident to any mortgages, charges or security in our favour. 11. To settle, compromise, discharge, compound or arrange or submit to arbitration all accounts, debts, losses and claims and disputes of all kinds, including insurance claims, whether claimable by or against us and to give effectual receipts and disch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any such person as aforesaid against all liabilities, costs and expenses incurred in the proper exercise of any power under this Power of Attorney or any authority given under paragraph 15 or 16. The authority of the Attorney under this Power of Attorney shall cease upon the earliest of: ( a) four years from the date of issue; or ( b) the Bank giving written notice of revocation to the Attorney, or ( c) the Attorney ceasing to be employed as Chief Executive Officer, India. This Power of Attorney is executed as a deed and shall be governed by and construed in accordance with English law. The Common Seal of STANDARD CHARTERED BANK Was affixed hereto In the presence of Sd/- .. Sealing Officer Sd/- . Sealing Officer Date issued: / April, 2016 12. In so far as the case of DBS Bank Limited is concerned, learned counsel for the Respondent- DBS Bank Limited referred to Power of Attorney dated 26th June, 2013 given by DBS Bank Limited in favour of Mr. Pankaj Jain, relevant portion of which is as follows: POWER OF ATTORNEY POWER OF ATTORNEY given on the 26th Day of June 2013 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. To commence and carry on, or concur any actions suits or other proceedings of every description, at law or in equity including bankruptcy or insolvency or liquidation or winding up or otherwise and to accept service of any writ of summons or other legal process and to enter an appearance in, defend, represent the Bank in or oppose any actions, suits or other proceedings as aforesaid, which may be. IN WITNESS WHEREOF the Bank has caused its Common Seal to be hereunto affixed this 26th day of June Two Thousand and Thirteen (2013). The Common Seal of ) DBS BANK LTD. ) was hereunto affixed ) in the presence of:- ) - Director Piyush Gupta (Mr) - Secretary Goh Peng Fong (Mr) 13. Learned Senior Counsel for the Respondent also relied on the decision of this Appellate Tribunal in Palogix Infrastructure Private Limited (Supra) , wherein similar issue fell for consideration before this Appellate Tribunal and by judgment dated 20th September, 2017, this Appellate Tribunal observed and held as follows: 31. As per Section 7 of the I B Code an application for initiation of Corporate Insolvency Resolution Process requires to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gnation. In such case, officer delegated with power can claim to be the Authorized Representative for the purpose of filing any application under section 7 or Section 9 or Section 10 of I B Code . 37. As per Entry 5 6 (Part I) of Form No.1, Authorised Representative is required to write his name and address and position in relation to the Financial Creditor /Bank. If there is any defect, in such case, an application under section 7 cannot be rejected and the applicant is to be granted seven days time to produce the Board Resolution and remove the defect. 38. This apart, if an officer, such as senior Manager of a Bank has been authorised to grant loan, for recovery of loan or to initiate a proceeding for Corporate Insolvency Resolution Process against the person who have taken loan, in such case the Corporate Debtor cannot plead that the officer has power to sanction loan, but such officer has no power to recover the loan amount or to initiate Corporate Insolvency Resolution Process , in spite of default of debt. 14. In both the cases, we find that the Officers of the respective Banks have been authorised by the Competent Authority to file the applica ..... 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