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TMI Blog2020 (3) TMI 1056X X X X Extracts X X X X X X X X Extracts X X X X ..... ly indicates that entire debt was recalled. There is a default on the part of the corporate debtor in payment of the financial debt . Thus, there is existence of default and that the application under section 7(2) of the Code is also complete in all respect - the petitioner/financial creditor having fulfilled all the requirements of section 7 of the Code, the instant petition deserves to be admitted - petition admitted - moratorium declared. - C. P. No. (IB) 460/7/NCLT/AHM/ 2018. - - - Dated:- 15-1-2020 - Ms. Manorama Kumari (Judicial Member) And Chockalingam Thirunavukkarasu (Technical Member) For the Financial Creditor/Petitioner : Kuldeep K. Adesara instructed by Ketan M. Parikh present For the Respondent : Jaimin R. Dave , Priyank Dave and Hirwa R. Dave ORDER MS. MANORAMA KUMARI (JUDICIAL MEMBER) .- 1. Mr. Dineshkumar Vashrambhai Chavda, being authorised signatory, filed this petition under section 7 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as the Code ) read with rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (hereinafter referred to as the Rules ) seeking reliefs und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sued under Bankers Books Evidence Act, 1891 104-169 8. Registered memorandum of entry dated 29-3-2014 executed by and between the corporate debtor with Bank of India 170-181 9. Resolution of the board of directors of the corporate debtor dated 28-3-2014 182-185 10. Certificate for creation of charge dated 29-3-2014 186-192 11. Certificate for creation of charge dated 31-3-2014 193-199 12. Omnibus guarantee for FBP/FBC limits dated 29-3-2014 by corporate debtor 200-203 13. Omnibus indemnity for imports dated 29-3-2014 by corporate debtor 204-205 14. Form of guarantee for letters of credit dated 29-3-2014 by corporate debtor 206-208 15. Credit facility agreement dated 29-3-2014 209-239 16. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctions : (a) the power of attorney holder is not competent to file an application on behalf of financial creditor ; (b) the petitioner has failed to establish the default on the part of the respondent ; (c) the respondent-company is a going concern and a viable company ; (d) the corporate debtor has made an offer for one-time settlement. Findings 8. Heard both sides at length as also perused the documents annexed with application. 9. The first objection raised by the respondent is that the power of attorney holder is not competent to file an application on behalf of financial creditor. 10. In this context, it is desirable to refer to the decision of the hon'ble National Company Law Appellate Tribunal in Company Appeal (AT) (Insolvency) No. 30 of 2017 in the matter between Palogix Infrastructure P. Ltd. v. ICICI Bank Ltd. [2018] 1 Comp Cas-OL 140 (NCLAT). The findings in paragraph 36 are relevant for the purpose of taking a decision in this matter. Paragraph 36 reads as follows (page 150) : In so far as, the present case is concerned, the 'financial creditor' bank has pleaded that by board's resolutions dated May 30, 2002 and October 30, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On the other hand, as we have seen, in the case of a corporate debtor who commits a default of a financial debt, the adjudicating authority has merely to see the records of the information utility or other evidence produced by the financial creditor to satisfy itself that a default has occurred. It is of no matter that the debt is disputed so long as the debt is 'due' i. e., payable unless interdicted by some law or has not yet become due in the sense that it is payable at some future date. It is only when this is proved to the satisfaction of the adjudicating authority that the adjudicating authority may reject an application and not otherwise. 14. On perusal of the records it is found that pursuant to the notice under sub-clause (b) if clause (5) of section 7 of the I and B Code dated April 5, 2019 issued by this Bench, the petitioner-bank has submitted copy of letter of authorisation dated February 22, 2019 issued by Shri Ramesh Chand Thakur, general manager of the applicant-bank authorising Mr. Dinesh kumar V. Chavda to file application under section 7 of the I and B Code 15. The second objection raised by the respondent is that petitioner has failed to e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the corporate debtor in payment of the financial debt . 20. There is no dispute in the case that the petitioner is the financial creditor. The application is also furnished in the prescribed Form 1 of the Rules and the prescribed fee has also been paid. Along with the application, the applicant proposed the name of the resolution professional, namely, Ms. Vineeta Maheshwari to act as an interim resolution professional. Therefore, this Adjudicating Authority hereby appoint Ms. Vineeta Maheshwari, M-19-20-21, Metro Tower, Ring Road, Surat-395 002, Gujarat State having IBBI Registration No. IBBI/IPA-001/IP-P00185/2017-18/ 10364. Form 2 along with the certificate of registration of the proposed interim resolution professional has been furnished by the applicant separately where declaration is made that no disciplinary proceeding is pending against him with the Board or Indian Institute of Insolvency Professionals of ICAI. 21. On perusal of record and as also discussed above, it is held that there is existence of default and that the application under section 7(2) of the Code is also complete in all respect. 22. In view of the above, the petitioner/financial creditor having f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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