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TMI Blog2019 (11) TMI 1525X X X X Extracts X X X X X X X X Extracts X X X X ..... Kartikeya Jain, Advocates ORDER Dr. P.S.N. Prasad, Member (J) 1. Ms. Rita Kapoor, claiming as the financial creditor, has filed the instant application under Section 7 of the Insolvency and Bankruptcy Code, 2016 (for brevity 'the Code') read with rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (for brevity 'the Rules') with a prayer to trigger Corporate Insolvency Resolution Process in respect of respondent Company Invest care Real Estate LLP referred to as the corporate debtor. 2. The Respondent LLP Invest care Real Estate against whom initiation of Corporate Insolvency Resolution Process has been prayed for, was incorporated on 30.11.2010 having its registered office at 307-308, roots tower, Laxmi Nagar, New Delhi-110092. Since the registered office of the respondent corporate debtor is in New Delhi, this Tribunal having territorial jurisdiction over the NCT of Delhi is the Adjudicating Authority in relation to the prayer for initiation of Corporate Insolvency Resolution Process in respect of respondent corporate debtor under subsection (1) of Section 60 of the Code. 3. The applicant has proposed the n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ta Kapur, was taken as equity contribution to the LLP: dated 13.04.2013, which doesn't exist as on date. g) It is alleged that the Respondents provided copy of resolution to convert loan capital to equity without the consent of the Promoting Partner in violation to clause 18(b) of LLP dated 13.04.2013 and no such information was provided either before or at the time of writing the 2nd supplementary agreement dated 25.03.2014 and at any time, before filling counter affidavit dated 26.12.2018 in (IB) 1594 of 2018. h) It is further alleged that without assigning reasons, respondents had executed 2nd. Supplementary Agreement to Invest Care Real Estate LLP duly signed by all three Designated Partners with 37 other General Partners on e-stamp paper dated 5.6.2013 and petitioner's contribution of ₹ 40,00,000/- in loan agreement 9.7.2013 transferred in it as equity capital, in violation to clause 6C of LLP: dated 13.04.2013, despite petitioner's objection, the amount was not returned/paid back, to raise ₹ 19,00,50,000/- and after selective payment, reduced to ₹ 16,90,00,000/-. Particularly when no LLP dated 13.4.2013 exists. i) The applicant f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ory documentary proof regarding the same. So, mere averments in the petition does not establish the same, in absence of supporting material evidence regarding the same. iv. T. Nagappa V. Y.R. Murlidharana: It is well settled principle of law that non-mentioning or wrong mentioning of provision of law would not be of any relevance, if the court has the requisite jurisdiction to pass an order. Regarding the above mentioned judgment (T. Nagappa V. Y.R. Murlidharana) we are of the opinion that this Tribunal is not the proper forum to look into the fraud related matter. 5. Upon receipt of the notices issued by this tribunal as well as service of notice by the petitioner, the Respondent/Corporate debtor has appeared through its counsel and has filed a detailed reply in the matter. Gist of the Contentions of the Corporate Debtor/Respondent are as under: a. It is stated by the respondent that the applicant is a general partner of LLP and hence, cannot be termed as a financial creditor. It is alleged that the claimed amount is not a loan but capital contribution of the applicant for being a general partner in the LLP. b. The respondent has pointed out various techni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'Operational Creditor' or 'Corporate Applicant'. 34. At this stage, it is desirable to refer Section 65 of I B Code' which relates to fraudulent and malicious initiation of proceedings', by a person who initiates the Insolvency Resolution Process or Liquidation proceeding fraudulently or with malicious intent for any purpose other than for the resolution of insolvency, or liquidation, as the case may be. In such case, the Adjudicating Authority is empowered under sub section (2) of Section 65 to impose upon such person a penalty which shall not be less than one lakh rupees, but may extend to one crore rupees. 35. In a case where it is noticed that the Insolvency Resolution proceeding has been initiated by a person fraudulently or with malicious intention for personal act on the part of an individual, can a Power of Attorney Holder be punished? This is one of the reasons we have noticed to hold that a Power of Attorney holder' cannot file any application under Section 7 or Section 9 or Section 10 of 'I B Code . *Through mere perusal of the above referred judgment it can be concluded that the present application is not maintainable due t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... initiating the IRP. The Gazette of India dated 01.03.2019 has been reproduced below: MINISTRY OF CORPORATE AFFAIRS NOTIFICATION New Delhi, the 27th February, 2019: S.O. 1091(E).--In exercise of the powers conferred by sub-section (1) of section 7 of the Insolvency and Bankruptcy Code, 2016 (31 of 2016), the Central Government hereby notifies following persons who may file an application for initiating corporate insolvency resolution process against a corporate debtor before the Adjudicating Authority, on behalf of the financial creditor: (i) A guardian; (ii) An executor or administrator of an estate of a financial creditor; (iii) a trustee (including a debenture trustee); and (iv) A person duly authorised by the Board of Directors of a Company. 12. In view of the statutory provision of the code and in view of the above clarification proper valid authorisation letter is necessary for filing of the application under the code. Invalid or defective authorisation letter cannot be rectified after reserving the order that should have been done prior to completion of the pleadings. In absence of valid authorisation in favour of the person filing the appli ..... X X X X Extracts X X X X X X X X Extracts X X X X
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