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TMI Blog2017 (12) TMI 1766X X X X Extracts X X X X X X X X Extracts X X X X ..... er, the word Authorised Person is loosely used without defining it, therefore, the usage of this word Authorised Person in the form annexed to Rules cannot invalidate the power of attorney. Power of Attorney defines principal and agent relationship. When an agent is chosen to deal with certain subjects, it need not be seen in which form that subject is, the point to be seen whether subject matter authority is given to him or not - this power of attorney is binding on the creditor bank, therefore, this power of attorney shall be held as valid authorization to proceed against the debtor. Whether pending of appeal over the order dismissing winding up petition against the Corporate Debtor, will have any bearing over adjudication of this case or not? - HELD THAT:- If the proposition of law does not stop the decree upon which appeal is filed, it is far fetching to say that IBC proceedings shall not be initiated looking at an appeal pending over some other proceedings filed against this Corporate Debtor. For the sake of clarity, we reiterate that winding up petition was dismissed against this very corporate debtor. Therefore, this argument of the corporate Debtor counsel saying this case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ank Ltd. [ 2017 (6) TMI 959 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, MUMBAI ] that JLF proceedings pending against the corporate debtor will not have any bearing on the cases initiated under IBC, therefore, this plea is hereby dismissed without having any further consideration on this point. Whether the Statement of Account filed by DBS is in compliance with Part V Serial No. 7 of Form No. 1 or not? - HELD THAT:- The inconsistency is the benchmark to invoke non-obstante clause of this Code upon other enactments. I must also say that when there is a categoric admission falling under Indian Evidence Act, that admission need not be put to proof as envisaged under Section 58 of Indian Evidence Act. Here, when a specific case has been put to the Corporate Debtor saying that the Corporate Debtor borrowed money and failed to repay the same, this Corporate Debtor has nowhere denied about existence of debt and occurrence of default. The Petitioner herein has furnished all the material to prove the existence of debt and occurrence of default. Petition admitted - moratorium declared. - B.S.V. PRAKASH KUMAR, JUDICIAL MEMBER AND V. Nallasenapathy, TECHNICAL MEMBER For the Petitioner : Atul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was overdue and payable by the Corporate Debtor. For this money was not being paid on 17.1.2017, the Corporate Debtor informed that the Joint Lender's Forum (JLF) was formed to ascertain the viability options to revive the company. The correspondence in between the bank and the Corporate Debtor dated 6.2.2017, 15.2.2017 and the returns (Form ECB 2) filed with RBI admits that the aforesaid amount is overdue and payable by the Corporate Debtor to the Petitioner herein and the same has been showing in the Annual Report of the Corporate Debtor for the Financial Year 2016-17. 4. This Creditor has also granted working capital facilities of ₹ 355.50 crores by two facilities for ₹ 90 crores and ₹ 265.50 crores on the same terms and conditions, including the master credit terms in the restatement of facilities and terms by two letters of the bank dated 27.1.2016, which the Respondent has admitted that the amount outstanding as on 30.11.2015 was over ₹ 131 crores by executing several security documents like Hypothecation of Stocks, Book Debts and Personal Guarantees etc. The bank account statement of Corporate Debtor proves that it was in continuous default since ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... btor, email dated 25.5.2017 from the Corporate Debtor to the Petitioner, letter dated 1.6.2017 from the Corporate Debtor to the petitioner Bank, Agreement of Hypothecation of stocks, Book Debts, Supplementary Hypothecation Agreement of stock/Book Debts dated 7.6.2013, Unattested Memorandum of Hypothecation dated 31.7.2014, Supplemental Memorandum to unattested Memorandum of Hypothecation dated 28.1.2016, Personal Guarantee of Dinesh Sahara dated 4.3.2014, 7.6.2013, 14.5.2014, 27.10.2016. 7. To prove that debt has been withdrawn by this Corporate Debtor from the facility of External Commercial Borrowing of USD15,895,000 and the working facility of ₹ 355,50,00,000 on various dates as mentioned in the Annexures to the Petition. 8. This Company petition has been filed by one Pallav Sangal as the person authorised to act on behalf of the Financial Creditor relying upon two power of Attorneys dated 27.6.2017 and 11.7.2017 issued by this Creditor Bank. Likewise, this Petitioner has even filed written communication given by the proposed Interim Resolution professional namely, Shailendra Ajmera (Ernst Young LLP, New Delhi) agreeing to accept for appointment of him as Interim Resolutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrence of default. 12. Now the points for consideration are as follows: a. Whether the Power of Attorney given to Pallav Sangal is defective or not? b. Whether Statement of Accounts have been properly certified as envisaged under Bankers' Books of Evidence Act, 1891? c. Whether the certificate of Registration of Charge over the assets of the Debtor Company is defective or not? d. Whether Facility Agreement has been adequately stamped or not, if not stamped adequately, whether such defect would deprive this petitioner from filing this Company petition or not? e. Whether an Appeal over an order dismissing winding up CP 570/2016 filed by IDFC Bank Ltd against this Corporate Debtor will have any bearing on this Adjudicating Authority passing an order under Section 7 of the Code or not? f. Whether the Reserve Bank of India directives pursuant to the Banking Regulations (Amendment) Act, 2017 will have any bearing on this application or not? g. Whether Insolvency Bankruptcy Code is applicable to the Agreement for ECB facility said to have been governed by English Law or not? a. Whether the Power of Attorney given to Pallav Sangal is defective or not? The Corporate Debtor Counsel says ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been entitled to authorise the representatives of bank to initiate proceedings before Court of Law. In furtherance of it only, she authorised Pallav Sangal to initiate the proceedings against this Corporate Debtor under Insolvency Bankruptcy Code on 27.6.2017. The Petitioner Counsel says that the procedure for giving power of attorney in Standard Chartered Bank is different from other banks, because this Standard Chartered Bank is registered under Queen's Royal Charter, there Power of Attorney will be signed by two sealing officers who are authorised by the Committee/Court of Standard Chartered Bank, London, in the case of Zarin Daruwala also, the sealing officers have authorised Zarin Daruwala to continue as Power of Attorney as stated under the Charter aforementioned. Moreover, to obviate this problem, sealing officers have directly given the power of attorney to Pallav Sangal on 11.7.2017 to proceed against the Corporate Debtor to take action under Insolvency Bankruptcy Code in respect to External Commercial Borrowing Account. The Corporate Debtor Counsel has raised frivolous argument saying that Board meeting resolution not being passed as envisaged under the Companies Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;t be dismissed on that ground. Moreover, for Article 5(b) of Maharashtra Stamp Act, 1958 mandates for payment of ₹ 100 on the Agreement, the same being already paid on that Agreement itself, the Corporate Debtor cannot raise this objection vaguely. Moreover, the liability to pay stamp duty being upon the Corporate Debtor as per the terms of Agreement, it is the Corporate Debtor to pay the stamp duty not by the Petitioner. For the Corporate Debtor having failed to prove that under such and such Article so and so amount is payable and for this Agreement is already stamped with ₹ 100 as contemplated under Article 5(b) of Maharashtra Stamp Act, 1958, we have not found any merit in the objection raised by the Corporate Debtor. e. Whether an Appeal over an order dismissing winding up CP 570/2016 filed by IDFC Bank Ltd against this Corporate Debtor will have any bearing on this Adjudicating Authority passing an order under Section 7 of the Code or not? This point being slated to deal with in the Petition moved by DBS, the same may be read as part of the order in this CP also. f. Whether the Reserve Bank of India directives pursuant to the Banking Regulations (Amendment) Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I facility availed by it on the Facility Agreement entered into on 19.2.2011 and as against USD 30 million ECB-II facility availed by it on another Facility Agreement entered into on 15.2.2012. For having availed loan facilities as aforesaid and thereafter defaulted in repaying the same, DBS Bank has filed this Petition to initiate Corporate Insolvency Resolution process against Ruchi Soya. Material facts from the Financial Creditor side: 2. It is a Bank established by Government of Singapore in the year 1968 incorporated in Singapore having its branches and offices in China, Dubai, Hong Kong, India, Indonesia, Japan, South Korea Malaysia, Myanmar, Philippines, Taiwan, Thailand, Vietnam, United Kingdom and United States. Its Branch in India is headquartered in Mumbai with 10 branches across our country. When Ruchi Soya situated in India approached DBS Bank for the loan facilities aforementioned, this Bank, having considered the request of Ruchi Soya, entered into first Facility Agreement with Ruchi Soya on 19.2.2011 through its Branch situated at Mumbai as Arranger showing itself as Lender, by agreeing to provide the Loan Facility in an aggregate amount equal to total commitment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essed by DBS on 25.8.2016, DBS again addressed a letter on 23.9.2016 to Ruchi informing that it has failed to pay the instalment payable on 6.9.2016 therefore, Ruchi breached the provisions of ECB-II; and failure to honour the payment obligations under ECB-II constitutes an Event of Default under Clause 22.5 of ECB-I Agreement giving right to DBS to accelerate payment obligations under ECB-I Agreement. In view of the same, DBS called upon Ruchi Soya to pay an amount of USD 25,000,000 outstanding under ECB-I and USD 9.6 million outstanding under ECB-II along with applicable interest under the respective Facility Agreements. To the letter dated 23.9.2016 sent by DBS on 8.11.2016, Ruchi Soya replied that it was undergoing financial difficulties for various reasons beyond its control, therefore, JLF has been constituted in July, 2016 with a Corrective Action Plan, and DBS having attended to various JLF meetings, Ruchi requested DBS to bear with us till the outcome of such solution bydenying the breach of its financial obligations towards DBS. When no payment had come from Ruchi, DBS on 4.11.2016 through their Advocates sent a winding up notice calling upon Ruchi to repay the total amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount of USD 50 million and thereafter, defaulted in repaying the said loan amount as agreed in the Facility Agreements. 7. As against this case, the Corporate Debtor Counsel has not raised any issue in respect to availing loan from DBS Bank and default in repayment of loan by Ruchi Soya, but on the contrary, the Counsel of the corporate debtor raised issues saying that (1) Power of Attorney filed along with this petition is defective; (2) this insolvency petition is hit by being an appeal pending over the order dismissing winding-up petition filed against this debtor, (3) for Reserve Bank of India being authorised to resolve specific stressed assets lying with Banks by initiating CIRP under IBC, RBI issued circular on 5th May 2017 and a corrigendum to it on 13th June 2017, basing on which, an Internal Advisory Committee was constituted to focus on large stressed accounts, which has examined 500 accounts, out of which 12 accounts were recommended to be taken up to NCLT under IBC, as to remaining 488 Accounts, RBI directed the Banks to finalise resolution plan within six months, that ends by 13th December 2017, but this Bank, instead of waiting until six months are complete, has proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the creditor. But its case is that though debt and occurrence of default are proved, for the defects above mentioned not being cured, this petition shall be dismissed. 10. Since proof of existence of debt and occurrence of default are being two subject matter constituents to admit the case u/s 7 of the Code, both being already held as proved, normally burden shifts upon the opposing party to prove that it is otherwise hit by some other grounds. Now this duty is cast upon Ruchi Soya for it has made assertion that the aforesaid defects are material to dismiss this case, in the absence of such disproval from Ruchi side, the Petitioner having already proved that debt and default are in existence as mentioned in Section 6 and 7 of Insolvency Bankruptcy Code, 2016, this petition ought to be admitted. Therefore, let us see as to whether the Corporate Debtor has discharged his duty in proving that these defects are in existence and they are material for dismissal of this case. (i) Whether there is any defect in the Power of Attorney as stated by the Debtor or not? Since it has already been said that duty is cast upon the Debtor to prove these assertions, we have first taken up the asser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aff: Name Passport No. PANKAJ JAIN L1705946 (Hereinafter called the Officer ) (3) The Bank is desirous of conferring on the Officer the powers and authorities hereinafter contained. NOW THIS DEED WITNESSETH that the Bank hereby appoints the Officer, each of them acting singly, to be the true and lawful attorney of the Bank to act for the Bank at any Branch and on behalf of and for and in the name of the Bank or in his own name to do and perform all or any of the following acts and things in India, that is to say:- 1. To ask, demand, sue for,at law or in equity, recover, receive, enter upon, seize and take possession of, all lands, goods, chattels, stocks, funds, moneys, securities, real and personal estate and property of any description, which the Banks holds, is entitled to or interested in, whether as owner, or under or by virtue of any bond, mortgage, charge, lien, pledge or security, or otherwise howsoever. 2. To ask, demand, sue for, either at law or in equity or otherwise, and recover, all moneys now due or owing or payable or which shall hereafter be or become due or owing or payable to the Bank on any account whatsoever, and to receive and give good receipts or releases fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Officer shall deem fit 8. To prove all debts and claims in bankruptcy, insolvency, liquidation or winding up proceedings, to receive dividends, vote for and represent the Bank at all meetings of creditors and to act as proxy for the Bank and to execute under hand or seal any deeds of assignment or scheme of arrangement or composition. 9. To act as trustee, liquidator or otherwise in relation to the affairs of any debtor or insolvent person or entity and to take all steps in relation to the winding up and arrangement of the affairs of any debtor or insolvent person or entity, 10. To appear before any court or office or other authority and to do and execute any act, deed or thing necessary for perfecting this Power of Attorney and any writing or instrument executed pursuant thereto. 11. To execute sign seal and deliver all deeds contracts, receipts, acknowledgements, settlement agreements, notices, instruments, documents and letters necessary and proper for effectively doing or causing to be done any or all of the acts and things which the Officer is empowered to do. Provided always that the Bank hereby grants and delegates to the officer all the powers and authorities of the Bank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsfer of any property to or by the company; (b) any proceedings by the company or by any member of the company against the present or former officers of the company; or (c) any application by the Minister to wind up the company. (3) If the unauthorised act, conveyance or transfer sought to be restrained in any proceedings under subsection (2)(a) is being or is to be performed or made pursuant to any contract to which the company is a party, the Court may, if all the parties to the contract are parties to the proceedings and if the Court considers it to be just and equitable, set aside and restrain the performance of the contract and may allow to the company or to the other parties to the contract, as the case requires, compensation for the loss or damage sustained by either of them which may result from the action of the Court in setting aside and restraining the performance of the contract but anticipated profits to be derived from the performance of the contract shall not be awarded by the Court as a loss or damage sustained. Power of directors to bind company 2SB.-(1) In favor of a person dealing with a company in good faith, the power of the directors to bind the company, or au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d therewith may be made on behalf of the corporation in writing signed by any person acting under its authority, express or implied; (c) a contract which if made between private persons would by law be valid although made by parol only (and not reduced into writing) may be made by parol on behalf of the corporation by any person acting under its authority, express or implied, and any contract so made shall be effectual in law and shall bind the corporation and its successors and all other parties thereto and may be varied or discharged in the manner in which it is authorized to be made. Authentication of documents (4) A document or proceeding requiring authentication by a corporation may be signed by an authorized officer of the corporation and need not be under its common seal. Execution of deeds (5) A corporation may by writing under its common seal empower any person, either generally or in respect of any specified matters, as its agent or attorney to execute deeds on its behalf and a deed signed by such an agent or attorney on behalf of the corporation and under his seal, or, subject to subsection (7), under the appropriate official seal of the corporation shall bind the corpor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w having said that one Director and Secretary can execute Deeds representing the company, whatever document executed with such an authority has to be taken as valid. The persons entering into a Deed with the company are very much protected by the doctrine of good faith inbuilt in the Act itself. The only exception under Companies Act, Singapore is, it should not be a related party transaction as stated under Section 25C and it can be questioned by the members of the same company. When no doubt is in existence that tomorrow somebody come on behalf of the company and say this institution of suit is invalid, how can this Corporate Debtor raise an objection over the Power of Attorney given by the Company authorising this person, i.e. Pankaj Jain to file this case before this Bench. Since this person has been authorised by the company itself, this Pankaj Jain designation as power of attorney is very much in fitting in the designation of authorised person mentioned in the Form. Moreover, when IBC is open to the world at large to proceed against Indian Companies, it has to be conceived that the power of authority given to somebody in accordance with the law of the respective country as va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... solvency Bankruptcy Code has come into existence, this Petition shall be dismissed at threshold. 15. Before going into the ratio decided in the case supra, it is imperative to look into the background facts in the case supra so as to find out on what premise such ratio has been decided by the Hon'ble NCLAT. 16. It appears in the case supra, ICICI Bank filed Section 7 petition against Palogix before NCLT, Kolkata Bench by an officer of ICICI Bank saying that he was authorised to file Section 7 petition through Power of Attorney issued to him on the Boad Resolutions dated 3.5.2002 and 30.10.2009 entitling this officer to deal with all legal proceedings for or against the Bank. The point relevant for the present discussion is, looking at this Power of Attorney, two Members Bench of Kolkata expressed divergent opinions on operation of Power of Attorney dated 20.10.2014, one saying that since this Power of Attorney was executed before Insolvency Bankruptcy Code has come into existence, this Power of Attorney will not entitle the holder of POA to initiate proceedings under Insolvency Bankruptcy Code which has come into existence in the year 2016, i.e. subsequent to the execution of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On Hon'ble Supreme Court having noticed that the person given authorisation himself has no power to authorise somebody else to proceed, it has held that the person claiming authority is not competent to defend the company Kingston. If a converse situation is presumed, then it is evident that, as per this ratio, if the power of attorney has come from a competent source, then that power of attorney confers power upon the holder to sue or to be sued on behalf of the company. 21. The Corporate Debtor in the case supra further relied upon T C Mathai v. Pr. District Session Judge [1999] 3 SCC 614 to say that Section 2 of Power of Attorney Act, 1882 cannot override the specific provision of statute which requires that a particular act should be done by a party in person. On looking at the facts of the case in the above, it is in relation to Criminal Revision Petition pending before a Sessions Court, a person holding power of attorney on behalf of wife and husband living in Kuwait insisted upon the Sessions Court to allow him to appear on behalf of those accused basing on the power of attorney given by them. On which, Hon'ble Supreme Court has categorically held that when it has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into such interpretation, one - it has to be proved that a specific new provision has come into law invalidating old provision of law, two - old law must be so inconsistent with new law that unless that provision is read down it is difficult to give effect to new law. Moreover, by bringing in this power of attorney issue, though debt and default are in existence, by this new issue of invalidating POA, it indeed bounces back on I BC itself causing hardship to the creditors in initiating proceedings under I BC. 23. Now if we come to the facts of the present case, it is evident that the Petitioner is a Bank with various branches spread all over the world, principal business of any bank for that matter is lending money for profit, therefore, to run this business and incidentally to proceed against defaulters and to defend the cases filed against the Bank, it has to invariably delegate its powers to various persons at least one or two persons in a country where it has branches. Likewise, in India that authority has been given to Mr. Pankaj Jain who is incidentally power of attorney holder to file this case before this Bench. Since it is a globally spread bank so whenever any power of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , deed can be signed by any key managerial personnel authorised by the Board on its behalf. The practise that happens in providing this authority is to execute that document with the seal of the company. Here, in this case, by reading the power of attorney, it appears that this power to authorise agent has directly come from the company with the seal of the company. It is deemed that company is bound by the said document. At the time when loan is given, the debtor has no requirement to see the Board, bank in its usual course to enter into Facility Agreements. Of course, the debtor should not also be put to be wrongly sued, but to say that, the debtor has to disprove the fact that suit has been rightly filed. As I said above, who proves what depends upon the material on record. If material on record persuades the adjudicating authority to believe existence of a fact, then unless such fact is disproved by other side, court cannot deviate from the said belief. In a big organisation, as per work assignment, business happens. Here the company authorised Pankaj Jain to act as power of attorney on behalf of the company. In India as well, since there is a presumption that when any document ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pute, that means the creditor proved its case; law cannot become an impediment to achieve justice basing on this reality. In the section of law or in the Rules, it has nowhere been mentioned that power of attorney should not file a case on behalf of the company, it only says that financial creditor can file. The terminology of authorised person is generic in nature, whereas, power of attorney is specific in nature. The phrase authorised person is a caption in general, encompassing the caption of power of attorney , because power of attorney is also nothing but authorisation with more rigours. Moreover, the word Authorised Person is loosely used without defining it, therefore, the usage of this word Authorised Person in the form annexed to Rules cannot invalidate the power of attorney. Power of Attorney defines principal and agent relationship. When an agent is chosen to deal with certain subjects, it need not be seen in which form that subject is, the point to be seen whether subject matter authority is given to him or not. In this particular power of attorney, the attorney holder has been given authority to proceed in the cases of insolvency and bankruptcy as well. It is not somet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ach shall be given to effectuate the purpose and object of law. We cannot pierce out something from the whole and propound a legal proposition, which goes against the main aim of the enactment. We do not say that petitions need to be admitted ignoring the procedural aspect that is required to be followed. If it is understood in the way it is to be understood, it will be clear that valid power of attorney is nothing but authorisation to proceed against the Debtor. 29. Moreover, if we read PALOGIX order closely, it has not been held anywhere that Power of attorney shall be executed after Code has come into existence, no doubt a question has been framed that as to whether power of attorney shall be executed to file cases under IBC, only after IBC has come into force. There have been back and forth arguments over it from either side, but this point has not been decided by Honourable NCLAT holding that POA executed before advent of IBC is invalid. This question has been framed in para 17 of Palocix supra, the statements in Para 23 of the order appears to be the argument of the corporate debtor in that case, because first line of the para starts with learned counsel for the corporate deb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e size of the company, the order passed by the Hon'ble NCLAT is distinguishable from the facts of this case, for there being no objection from the bank's side and there being no material from the debtor side to disprove that this authorization given in favour of Pankaj Jain is not valid one, we hereby hold that this power of attorney is binding on the creditor bank, therefore, this power of attorney shall be held as valid authorization to proceed against the debtor. ii. Whether pending of appeal over the order dismissing winding up petition against the Corporate Debtor, will have any bearing over adjudication of this case or not? As of today or as on the date of filing this case before this Bench, no winding up petition is pending before Hon'ble High Court of Bombay, indeed the winding up petition filed by IDBI against this company has been decided against IDBI, mere pendency of appeal before appellate jurisdiction over the dismissal order cannot be said as winding up petition pending before Hon'ble High Court of Bombay. Till date there is holding saying that if winding up petition is pending before High Court, NCLT cannot proceed under Insolvency Bankruptcy Code. M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... postponed or not on the ground that on reference (in the matter of Union Bank of India vs. Era Infra Engineering Ltd.) to the larger Bench on the issue of as to that whether proceeding under IBC can be triggered while winding up petition pending before the respective High Courts against the same Corporate Debtor ? This case will not be covered in any of the categories mentioned in the case referred because no winding up petition is pending against the corporate debtor herein. The corporate debtor counsel relied upon Dattatray Gokhale v. ABW Infrastructure Ltd. (CP (IB) 74 (PB) 2017) NCLT, Delhi on 28.06.2017, Nauvata Engineering Pvt. Ltd. v. Punj Lloyds Ltd. (CP (IB) 217 (PB) 2017) NCLT, Delhi on 19.07.2017 to say that two proceedings cannot be permitted for liquidation one before Adjudicating Authority under IBC and another before High Court against the same company. Since no winding up petition is pending before High Court as of now against this corporate debtor, except an appeal on dismissal order, this petition cannot be kept under suspension by looking at a fight this very corporate debtor fighting before Appellate Authority for confirmation of the original order. In view of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmation of Joint Lender Forum will have any bearing over filing of this case or not? It has already been held by the Hon'ble NCLAT Innoventive Industries Ltd. v. ICICI Bank Ltd. [2017] 82 taxmann.com 190/142 SCL 11 (NCL - AT) that JLF proceedings pending against the corporate debtor will not have any bearing on the cases initiated under IBC, therefore, this plea is hereby dismissed without having any further consideration on this point. The corporate debtor counsel relied upon IDFC Bank Ltd. v. Ruchi Soya Industries Ltd. (Bom HC Com, Petition No. 570 (Bom.) 2016, dated 14-2-2017 Central Bank of India v. Ravindra (2002) 1 SCC 367, Essar Steel India Ltd. v. RBI [2017] 83 taxmann.com 283/143 SCL 580 (Guj.) to say that when a scheme is proposed for settlement of the creditors dues, the creditors will have to wait for settlement of their dues, it is not correct proposition of law as against IBC proceedings for two reasons, one - a mechanism recommended by RBI Circular will not have any bearing on IBC proceedings owing to non-obstante clause present in Insolvency and Bankruptcy Code, two - it has been settled by Hon'ble NCLAT as well as Hon'ble Supreme Court in Innoventive In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t all canons of law are null and void as against Insolvency and Bankruptcy Code, 2016. It is being said by Hon'ble Supreme Court umpteen times, that whenever any overriding effect is given in any statute, it has to be consciously applied so as not to dilute the operation of other laws save and except to the extent of inconsistency mentioned in the enactment constituted with non obstante clause. Since the statement of account being a document falling within the definition of Bankers' Books , and copy having been filed as mentioned in Entry 7, the document has to be taken into consideration as part of the documents filed under Part V of Form No. I. The corporate debtor relied upon Punjab National Bank v. Concord Hospitality Pvt. Ltd. [2017] 85 taxmann.com 20 (NCLT - Chandigarh) dated 4.8.2017 having stated that when banks statements submitted are not in accordance with Bankers Books Evidence Act, 1881, such statements are not admissible. Hence, this petition cannot be maintained. It has not been decided in this case as to what exactly column no.7 requisite. Whereas here it has been clarified with reasons that certified copy has not been asked in column no.7 therefore, it is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n view of the same, we are of the view that inconsistency is the benchmark to invoke non-obstante clause of this Code upon other enactments. I must also say that when there is a categoric admission falling under Indian Evidence Act, that admission need not be put to proof as envisaged under Section 58 of Indian Evidence Act. Here, when a specific case has been put to the Corporate Debtor saying that the Corporate Debtor borrowed money and failed to repay the same, this Corporate Debtor has nowhere denied about existence of debt and occurrence of default. 34. For the reasons afore stated, we are of the view that the Petitioner herein has furnished all the material to prove the existence of debt and occurrence of default. 35. In view of the same, this Bench hereby admits this Petition prohibiting all of the following of item-I, namely: I (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 be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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