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TMI Blog2017 (7) TMI 1352X X X X Extracts X X X X X X X X Extracts X X X X ..... r Chatterjee, Advocate, Ranjan Bachawat, Advocate, Debnath Ghosh, Advocate, Sanjay Ginodia, Advocate, Swapna Choubey, Advocate, Pubali Sinha, Advocate, Aarti Goyal Agarwal, Advocate, Judgment Per: Vijai Pratap Singh, Member (J) The Applicant Bank of Baroda (BOB) has filed an application under Sec. 7 of the Insolvency and Bankruptcy Code, 2016 (IBC, 2016) read with Rule 4 of the Insolvency Bankruptcy (Application to Adjudicating Authority) Rules, 2016 against Binani Cement Ltd., a debtor. 2. The brief facts of the case, as stated in the application, are that Bank of Baroda is a corporate body constituted under the Banking Companies Act, 1956, Identification No.AAACB1534F. Shri Rarn Auttar Pal has filed this application on behalf of BOB on the basis of authorization letter dated 9/ 10/2015 annexed as Annexure l . 3. The Corporate Debtor Binani Cement Ltd., Identification No. is U26941WB1996PLC076612. The registration number of the proposed interim resolution professional is Mr. Vijaykumar V. lyer, Registration No.IBBI/IPAOO 1/1P-00526/2016-17/ 1370 of Deloitte Touche Tohmatsu India LLP Indiabulls Finance Centre, Tower 3, 27th Floor, Senapati Bapat Marg, Elphin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... guarantee agreement dated 25/2/2015 annexed to the petition as Annexure 8. The petitioner has also filed copies of the minutes of the meeting of the JLF held on 20/ 1/2017 as Annexure 9, copies of the corporate guarantee agreement dated 25/2/2015 as Annexure 10, copies of personal guarantee agreement dated 17 / 3/2015, copies of joint deed of hypothecation dated 6/2/2015 executed by the Company for the benefit of the JLF Annexure 12, details of immovable property Annexure 13, copies of joint deed of hypothecation Annexure 17, certificate of registration of charges issued by the Registrar of Companies Annexure 18, copy of status classification report relating to corporate debtor issued by Trans Union CIBIL dated 28/4/2017, copies of CRILC report relating to corporate debtor as on 31/ 12/2015 Annexure 20, copies of entries maintained by BOB in accordance with Banker's Books of Evidence Act, 1891 Annexure 21, copies of account overdue letters and the financial statements between 11/4/2016 and 13/5/2016 Annexure 22, copies of financial statement of corporate debtor for the financial year ending 31/3/2016, an affidavit in support of the application to prove the fact of extending loa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng facility agreement BOB lending is ₹ 24.26 crore. It appears that other banks have also lending money to the corporate debtor details of which are mentioned in the MRA Annexure 3. 14. As per the law laid down by the Hon 'ble NCLAT in the case of Innovative Industries Ltd. vs. ICICI Bank notice was issued to corporate debtor and after getting the notice corporate debtor made a representation for dismissing the petition. 15. The corporate debtor has filed objection mainly on the ground that no specific power of attorney has been granted by the applicant BOB for initiation of corporate insolvency process. The corporate debtor has stated that the petition has been verified by Shri Ram Autar Pal on the basis of a Power of Attorney executed by Mr. Jayeshkumar Vasantray Mehta on 9/10/2015. Such power of attorney was executed prior to coming into effect of the Code and cannot form the basis for filing proceedings under the Code. 16. The corporate debtor has raised objection that Power of Attorney dated 9/ 10/2015 is based on Power of Attorney dated 16/2/2015 executed by the applicant in favour of Mr. Jayeshkumar Vasantray Mehta. However, copy of the Power of Attorney d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the said authority shall from time to time think fit and the Bank doth hereby lastly declare that the powers and authorities contained herein are not by way of substitution or in revocation of any power of attorney conferred on the said Attorney. 20. On the basis of power of attorney executed by financial creditor in favour of Mr. Jayeshkumar Vasantray Mehta, it appears that he was authorized to appoint one or more attorney to exercise for the bank as the bank attorney as the case may be. 21. The second power of attorney which has been executed by Mr. Jayeshkumar Vasantray Mehta in favour of Ram Autar Pal is also filed which is dated 9/ 10/2015 which shows that Mr. Jayeshkumar Vasantray Mehta, Deputy General Manager, Bank of Baroda has executed power of attorney in favour of Ram Autar Pal. On the basis of authority given to him under the power of attorney dated 16/2/2015 by financial creditor. It is pertinent to mention that BOB initially executed power of attorney in favour of Mr. Jayeshkumar Vasantray Mehta and through the said power of attorney he was authorized to appoints one or more attorney to act on behalf of BOB and on the basis of this authorization Mr. Jayeshkum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cate to file the said application is in the name of a firm of lawyer and not in the name of individual advocate as is required under the NCLT Rules, 2016. On the basis of record it is clear that the Vakalatnama has been filed by the petitioner with the petition is proper and it shows that BOB has executed and appointed S.N. Sen B.M. Law Co., Lawyers and Advocates to act in the matter and Shri Souvik Majumdar, Advocate has accepted the Vakalatnama by putting his signature as partner of S.N. Sen B.M. Law Co., Lawyers and Advocates to act in the proceedings. It is clear that BOB has given Vakalatnama in the name of the firm S.N. Sen B.M. Law Co. and Shri Souvik Majumdar has accepted the same as a partner of the firm. So it cannot be said that the Vakalatnama is not proper. 25. The corporate creditor has further raised objection that no notice was issued by the adjudicating authority or National Company Law Tribunal. It is made clear that the notice was issued on the corporate debtor and affidavit of service was filed by the financial creditor that notice was served on the corporate debtor through Speed Post on 16/6/2017. It is pertinent to mention herein that the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncy Bankruptcy Code, 2016 is hereby admitted for initiating the Corporate Resolution Process and declare a moratorium and public announcement as stated in Sec. 13 of the IBC, 2016. Moratorium is declared for the purposes referred to in Sec. 14 of the Insolvency Bankruptcy Code, 2016. The IRP shall cause a public announcement of the initiation of Corporate Insolvency Resolution Process and call for the submission of claims under Sec. 15. The public announcement referred to in clause (b) of sub-section (I) of Insolvency Bankruptcy Code, 2016 shall be made immediately. Moratorium under Sec. 14 of the Insolvency Bankruptcy Code, 2016 prohibits the following: 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 au thority; 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 includin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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