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TMI Blog2019 (2) TMI 1621X X X X Extracts X X X X X X X X Extracts X X X X ..... Balance Time period for which interest is calculated Total no. of days Interest rate Interest 1,60,00,000.00 1st January, 2015 to 31st March, 2015 90 24% 9,46,849 1,69,46,849.00 1st April, 2015 to 31st March, 2016 366 24% 40,78,387 2,10,25,236.00 1st January, 2015 to 31st March, 2015 21 24% 2,90,321 2,05,25,236.00 1st January, 2015 to 31st March, 2015 344 24% 46,42,640 2,54,58,197.00 1st January, 2015 to 31st March, 2015 354 24% 59,25,831 Grand Total 1,58,84,028 INDIVIDUAL WORKING OF LOAN DRAWN DOWN FROM BANKS AND INTEREST DUE 27-November-2014 to 20-March-2018** Balance Time period for which interest is calculated Total No. of days Interest rate Interest 1,35,00,000.00 27th November, 2014 to 27th January, 2015 62 7% 1,60,520.55 1,70,50,000.00 28th January, 2015 to 17th March, 2015 49 7% 1,60,223.29 1,84,14,000.00 18th March, 2015 to 20th March, 2018 1099 7% 38,81,065.81 Grand Total 42,01,809.65 MONTHLY INSTALMENTS FOR LOAN REPAYMENT AND INT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ous dates. 2.3. Subsequently it is informed that in the year 2014 the Corporate Debtor had convinced the Petitioner/ Financial Creditor to invest in a flat based on an investment scheme. The Corporate Debtor and the Financial Creditor executed a Memorandum of Understanding in June 2014 ("Investment MoU"). According to this MoU:- - the contribution towards the investment scheme was apportioned from the Deposit; - the amount utilized from the Deposit was merely an extension of the scheme offered on the Deposit. The Corporate Debtor continued to remain liable to pay interest at 24% per annum on the amounts utilized from the Deposit towards the investment scheme; - the Financial Creditor was to avail of a Bank loan using the said flat as security; - the amount drawn down from the bank would be availed by the Corporate Debtor for their business needs; - the Corporate Debtor had assured the Financial Creditor under the "Investment MoU" that all amounts drawn down from the bank would be repaid to the bank by the Corporate Debtor; - further, any and all EMI amounts would be repaid by Corporate Debtor to the Bank. The Corporate Debtor would pay the Financial Creditor an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time and again given verbal assurances that the outstanding dues will be cleared soon. 2.9. The Petitioner/ Creditor also submitted that as per the details of the transaction stated in Form 1, the Corporate Debtor owes a sum of Rs.1.60 Crores at an Interest rate of 24% per annum, INR 1,84,14,000/-at an Interest rate of 7% per annum (simple interest) towards the loan drawn from Banks, INR 13,68,820/- at an Interest rate of 12% per annum towards the EMI's paid by Financial Creditor on behalf of Corporate Debtor and all interest and charges accrued on the home loan account under the Investment MoU, as per actuals till date. The total amount payable including unpaid accrued amounts on home loan account and the interest calculated on each of the above for the duration ending 20th March, 2018, is INR 6,09,11,309/- towards principal, interest and unpaid accrued amounts due till date. The amounts to be paid on the loan account under the Investment MoU, will be as per the actuals. All amounts need to be paid with interest accrued until date of actual repayment. 2.10. The Petitioner further states that despite clear and cogent obligations to pay and remit the amounts to the Financial Cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vency Resolution Process or IBC in the Power of Attorney. Also submitted that during the course of hearing decided not to rectify this defect and in fact made submission to the effect that Power of Attorney holder can file such an application. Therefore, at this stage, Applicant cannot be permitted to rectify the defect. 3.2. The Respondent also submitted that the Application is incomplete for the following reasons:- (a) There is a requirement under the code to furnish the record of default with information utility, the same has not been furnished. (b) Record of default with credit information company is also not furnished. (c) The Applicant is to furnish its own books of account and ledger showing the amount outstanding. The Applicant has admittedly not furnished its own books of accounts, which would show such amount as loan given. In fact, the Applicant's books of accounts, if called for by this Hon'ble Tribunal will not show this amount as loan and therefore the Applicant has deliberately not produced its own books of accounts. The Applicant has produced the bank statement of the Applicant showing transfer of payment to the Corporate Debtor. This is not complianc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loan. The loan is taken by the applicant from the bank and Corporate Debtor was supposed to reimburse the said amount. 3.7. The Respondent further submitted that the Memorandum of Understanding, the Applicant seem to rely upon, is undated and in fact provided for adjustment of the entire fixed deposit amount. The amount which the Applicant is claiming separately under the present application is already adjusted towards the price of the flat. The amount of Rs. 905.25 lakhs is transferred from fixed deposit towards the price of the flat. 3.8. Therefore, the Respondent/ Corporate Debtor submitted that, if the Applicants relies on the memorandum of understanding the contentions of its claims being live under the fixed deposit receipt has to be rejected. Further the memorandum of understanding can be construed as 'loan agreement' or a 'transaction' where parties agree to pay any amount at a later date. The memorandum of understanding is only an understanding between the parties where it is recorded that the loan taken by the Applicant will be paid by the Applicant and the Corporate Debtor will reimburse the said amount in such a manner that it would ensure benefits of 7% interest t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Management. In that situation a specific Power of Attorney for some specific execution of work is required to be issued. On the contrary, the Petition in hand is submitted by an Individual in respect of his own finances advanced as a Loan to the Financial Debtor. An individual, specially when he is NRI, has to authorize an individual resident of India to act on his behalf and to protect his interest in India. There is no provision in the Insolvency Code prescribing a particular mode and manner for writing a Power of Attorney for the purpose of filing of a Petition under Insolvency Code before NCLT. In the absence of any specific guidelines, this issue of authorization ought to be decided on the basis of prevailing general practice. In this case the practice in vogue for writing a general Power of Attorney is adopted which is very much appropriate specially when there is no bar under this Code. The Petition is not defective and the technical ground is to be dismissed. 4.2. Another legal objection is that the Debt is barred by Limitation, which is also an incorrect legal objection because of the simple reason that the Petitioner had regularly pursuing the Debt. The default o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Insolvency Process shall commence as prescribed under Section 7 of I&BC, 2016. The defence advanced by the Corporate Debtor is that the Power of Attorney holder cannot file Application under section 7 of The Code to initiate Corporate Insolvency Resolution Process against the Corporate Debtor. Further, the stand of the Corporate Debtor that the Petitioner, being an Individual entity, cannot file an Application under I&B Code, 2016, as stated to have contended in the case of ICICI Bank Limited Vs. Palogix Infrastructure in Appeal No.37 of 2017 does not hold good in this case. The Petitioner/ Creditor has given unqualified authority by way of Additional Vakalatnama on 16.11.2018 to sign, file, verify and present pleadings, appeals, cross-objections or petitions for execution, review revision, withdraw, compromise, other petitions, affidavits or other documents as may be deemed necessary or proper for the prosecution of the said case in all its stages. 5. The Petitioner / Financial Creditor has proposed the name of the IRP Mr. Pravin Navandar, D-519/520, Neelkanth Business Park, Nathani Road, Vidya Vihar (W), Mumbai - 400 086, Email adderss: [email protected] , Registration No. IBBI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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