9911796707
TMI Blog2020 (10) TMI 488X X X X Extracts X X X X X X X X Extracts X X X X ..... 16.17 lacs during the financial year 2019-20. Further, the records reveal that from time to time the respondent has executed/entered into various documents acknowledging the debt. This itself shows that the respondent company has acknowledged the debt in the financial year 2019-20. Since the application is filed on 29.04.2019, it is well within time. Whether the power of attorney holder is not competent to file an application on behalf of financial creditor? - HELD THAT:- It is a matter of record that the seal affixed at the foot of the said power of attorney is the seal of the said bank and the name of signatures of Shri P.Y. Nagar, Shri T.K. Sharma and Shri D.K. Jain thereto subscribed are as those of the General Managers of said Bank of Mumbai are of the proper respective handwriting of the said Shri P.Y. Nagar, Shri T.K. Sharma and Shri D.K. Jain and the power of attorney is granted as per resolution passed by the Board of Directors of the Bank. Failure to establish the default on the part of the respondent - HELD THAT:- It is a matter of record that the petition reveals that the corporate debtor had availed term loan, fund/non fund based limits, working capital limi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompany incorporated under the Companies Act, 1956 on 8th December, 2011, having identification No. U74999GJ20000PLC038720 and having its registered office at Rander Road, Surat, Gujarat State. That Authorised share capital of the respondent company is ₹ 20,00,00,000.00 and paid up share capital is ₹ 9,12,00,000.00. 4. That, the applicant/financial creditor has submitted that the respondent has defaulted in payment towards principal and interest against the working capital, letter of credit, term loan etc., sanctioned/disbursed to the respondent as per the details annexed to the application at page 3. 5. The applicant has submitted copy of the following documents in support of their claim: - Sl. No. Particulars Page Nos. 1 Application by financial creditor for initiation of corporate insolvency against respondent company under Section 7 of IBC and general affidavit 1-9 2 Power of attorney of authorised signatory of the applicant 10-14 3 Form N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21 Composite hypothecation deed executed on 07.03.2013 to the extent of ₹ 5.00 crores 81-94 22 Certificate of charge registration dated 29.04.2011 issued by ROC, Gujarat 95 23 Certificate of charge registration dated 01.04.2013 issued by ROC, Gujarat 96-103 24 Personal guarantee for ₹ 3,72,00,000/- dated 19.01.2012 ₹ 1,50,00,000/dated 19.01.2012, ₹ 2,50,00,000/- dated 07.03.2013, ₹ 5,00,00,000/- dated 07.03.2013, ₹ 3,50,00,000/- dated 07.03.2013 104-123 25 Memorandum of extension of deposit of title deeds registered with sub registrar dated 22.05.2009 124-136 26 Memorandum of extension of deposit of title deeds registered with sub-registrar, Surat City dated 19.03.2010 137-162 27 Memorandum of extension of deposit of the title deeds registered with Sub-Registr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase is not crystalized as on date and as such the instant petition is legally untenable. That, the applicant has not relied upon any recall notice in the entire application to establish that the account of perpetual nature was ever recalled. It is further alleged that the entire set of papers enclosed with the application does not disclose the account of the respondent was classified as NPA as on 30.09.2014. That, no amount is due and payable to the applicant for which the instant petition has been filed. Findings 8. Heard the learned counsel appearing for the applicant at length as also perused the documents annexed with application/reply. On perusal of the records it is observed that despite repeated calls none appeared on behalf of the respondent and, therefore, final hearing of the application is made in absence of the representative of respondent. 9. On perusal of the records prima facie it appears that the objections/allegations raised by the respondent are illusory and not supported by any valid document, whereas, the applicant bank has filed volumes of papers documenting sanction, disbursement, recall/demand notice, reply of corporate debtor to the demand notice et ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the said Shri P.Y. Nagar, Shri T.K. Sharma and Shri D.K. Jain and the power of attorney is granted as per resolution passed by the Board of Directors of the Bank. 13. The second objection raised by the respondent is that petitioner has failed to establish the default on the part of the respondent. It is a matter of record that the petition reveals that the corporate debtor had availed term loan, fund/non fund based limits, working capital limits etc. from the petitioner bank and the respondent has acknowledged the debt from time to time. 14. The debt recovery proceedings are initiated by the Financial Creditor to recover the amount. Simply because the Financial Creditor initiated proceedings before the Debt Recovery Tribunal, it does not lie in the mouth of the corporate debtor to say that no default occurred. As such there is no bar in filing IB application during the pendency of DRT proceedings. Moreover, Corporate Debtor did not disclose any bona fide defence based on substantial grounds for the claim made by the Financial Creditor before this Authority. The above said evidence is sufficient to substantiate the plea of the Applicant that a default has been committed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings are pending against him with the Board or Indian Institute of Insolvency Professionals of ICAI. 19. In view of the above, the petitioner/financial creditor having fulfilled all the requirements of Section 7 of the Code, the instant petition deserves to be admitted. 20. The petition is, therefore, admitted and the moratorium is declared for prohibiting all of the following in terms of sub-section (1) of Section 14 of the Code: - (i) 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; (ii) transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; (iii) 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 (54 of 2002); (iv) the recovery of any property by an owner or lessor where such propert ..... X X X X Extracts X X X X X X X X Extracts X X X X
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