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TMI Blog2018 (6) TMI 843X X X X Extracts X X X X X X X X Extracts X X X X ..... ain is not authorized to sign the pleadings and file the application before us has also lost its sheen because with the rejoinder a copy of the certificate dated 26-03-2018 issued by the Financial Creditor under Bankers’ Books Evidence Act, 1891 and a copy of the Board Resolution of the Financial Creditor dated 06-12-2008 along with special power of attorney dated 11-08-2017 in favour of Mr. Naveen Jain have been placed on record. The filing of the aforesaid documents completely answer the objections raised by the Corporate Debtor. It is evident that by virtue of special power of attorney dated 11-08-2017 Mr. Naveen Jain has been authorized to file such like application before any Court/Tribunal. Accordingly, we find that the aforesaid objection is frivolous and is devoid of merit. Accordingly, the same is rejected. Corporate Debtor has various claims and litigations pending against the public sector undertakings like National Highways Authority of India, Railway and many others. It has filed arbitration proceedings and those proceedings are likely to result in payment of huge amounts. We are afraid that we cannot accept the pending claim petition as a basis for rejecting the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Loan of ₹ 100 crores on standalone basis was sanctioned vide sanction letter bearing No. IFB:CR:602.12. Pursuant to the sanction the loan was also disbursed to the Corporate Debtor on 31-12-2012. The amount of term loan along with interest was repayable in 14 instalments as agreed to between the parties. 5. According to the particulars of the debt disclosed in part IV of Form-1 prescribed under sub rule 1 of Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 the total amount sanctioned to the Corporate Debtor on several dates is to the extent of ₹ 1506.33 crores. The details of the amount disbursed have been furnished (Annexure-A V). 6. In column 2 of part IV the amount claimed to be in default and the date on which the default occurred have been stated in clear terms. According to the averments made by the Financial Creditor- Union Bank of India the aforesaid facilities availed by the Corporate Debtor are overdue and total amount in default is to the extent of ₹ 681.04 crores and in addition External Commercial Borrowing of USD 11,971,939.13 as on 31-05-2017 is also in default. Copies of statement of account calcu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s which is not in accordance with the Bankers Book Evidence Act. 12. The Corporate Debtor further asserted that the present application under Section 7 of the Code, 2016 has been filed through Power of Attorney dated 15-12-2014 by Mr. Naveen Jain, Deputy General Manager but the provisions of Section 7 of the Code came into force w.e.f. 01-12-2016. Thus, the Power of attorney has been executed prior to the Code having come into force and there is no specific authority or resolution passed by the Financial Creditor in favour of Mr. Naveen Jain to sign the present application. Thus, the present application is without valid authority and therefore, no order for initiating CIR Process can be passed against the Corporate Debtor. 13. The Corporate Debtor has raised further objection that the aforesaid Power of Attorney is defective as the same has not been executed on a stamp paper, thus the same is inadmissible in evidence. Further, no resolution of the Board of the Financial Creditor has been placed on record to substantiate that the Financial Creditor has passed any resolution authorizing Shri S.K. Singh and Shri Deba Jyoti Gupta to execute the Power of Attorney in favour of Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to the reply/objections has been filed by the Financial Creditor reiterating the submissions made in the application and controverting the assertions in the reply/objections. Along with a rejoinder a copy of certificate dated 26-03-2018 issued by the Financial Creditor under Banker s Books Evidence Act, 1891 and a copy of the Board Resolution of the Financial Creditor dated 06-12-2008 along with Special Power of Attorney dated 11-08-2017 in favour of Mr. Naveen Jain have been placed on record (Annexure R/ 1 R/2). 20. Thereafter, affidavit on behalf of the Financial Creditor has been filed for placing additional documents on record wherein a copy of no objection certificate given by earlier Interim Resolution Professional namely Mr. Dhaivat Anjaria proposed by the Financial Creditor has withdrawn his candidature for appointment as IRP due to personal circumstances. A certified true copy of no objection certificate of Mr. Dhaivat Anjaria has been placed on record (Annexure A I). The Financial Creditor also filed consent received from Mr. Rajiv Chakraborty along with Form 2 as well as eligibility certificate whereby his name has been proposed to act as an Interim Resolution Pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication under Section 7 of the Code. We also declare moratorium in terms of Section 14 of the Code. A necessary consequence of the moratorium flows from the provisions of Section 14 (1) (a), (b), (c) (d) and thus the following prohibitions are imposed which must be followed by all and sundry: (a) the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; (b) transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; (c) any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; (d) the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. 25. It is made clear that the provisions of moratorium shall not apply to transactions which might ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 11 of the Code would be attracted only if a winding up petition is admitted and a Provisional Liquidator is appointed. There is no petition so far admitted nor any Provisional Liquidator has been appointed. Therefore, bar created by Section 11 of the Code according to the judgments Unigreen Global (P.) Ltd. (supra) Forech India (P.) Ltd. (supra) and Three Member s Bench judgment rendered in a case of Union Bank of India v. Era Infra Engineering Limited [(IB)-190(PB)/2017, dated on 16-02-2018] would not be attracted. 28. While resisting the admission of the petition learned counsel for the Corporate Debtor has raised the argument that there are discrepancies in the xerox copy of the account furnished. According to the learned counsel the handwritten additions and omissions are against the specific provisions of The Bankers Books Evidence Act, 1891 and therefore, such an account is liable to be rejected. 29. We are not persuaded to accept this argument because Section 4 of the Bankers Books Evidence Act, 1891 provide for mode of proof of entries in bankers books and the same read as under: - Section 4. Mode of proof of entries in bankers books.- Subject to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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