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TMI Blog2020 (9) TMI 1152X X X X Extracts X X X X X X X X Extracts X X X X ..... t Mr. Sanjay Gupta obtained Special Power of Attorney in his favour issued by Ms. Neelu Gupta flouting all the norms of the Companies Act thereby the very power given in favour of Mr. Sanjay Gupta is bad in the eye of law and as such the application is not maintainable for want of proper authorisation. Admittedly, as also matter of record that, the applicant is not a corporate applicant as per form 6, Clause 3, the applicant is not a director and is disqualified under Section 164, wherein the name and address of the Director is shown as presently, there is no Director on the Board of the Company due to disqualification under Section 164 of the Companies Act 2013 . However, clause 3 of form 6 further discloses that the list of promoters along with their address attached. On perusal of the record i.e. balance sheet as on 31.03.2016 (page 254) it is found that under the head deferred tax liability an amount of ₹ 10,34,37,089/- has been shown thereby meaning that no returns have been filed by the company. It is also a matter of record that objector banks have already initiated proceedings under RDDB Act, 1993 and SARFAESSI Act, 2002 and to install the said proceedings, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons and non-creation of security by the applicant, the defendant bank had to withdraw the said scheme on 17.12.2014. 5. It is further submitted by learned lawyer of SIDBI that despite frequent reminders, request letter and notices, the applicant had not repaid the outstanding dues of the bank in the account and consequent upon which the bank had left with no option except to file recovery proceedings before Debt Recovery Tribunal (DRT) and the said recovery proceedings were initiated by filing Original Application being numbered as OA 189 of 2015 under Section 19 of the Recovery Debts due to Banks and Financial Institutions Act, 1993 before DRT-I, Ahmedabad is pending. Thereafter, the corporate debtor has filed this application to install the proceedings pending before DRT under RDDB Act, 1993 and SARFAESSI Act, 2002 as there is every apprehension that the bank may take over physical possession of the properties on which charge was created in favour of the bank. It is further alleged that the corporate debtor had manipulated the business of the company which is a deliberate attempt of fraud with the bank and which made the accounts of the corporate debtor as NPA. Hence, to avoid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... letter of confirmation etc. The said document is annexed as Annexure H . 9. It is further submitted that the corporate applicant had failed and neglected to repay the loan as per the terms and conditions of the sanction and had approached the bank to roll over the said term loan vide request letter dated 17.10.2011. The respondent bank had accepted the request and rolled over the said short term loan for a period of 180 days on the existing terms and conditions and had issued sanction letter dated 18.11.2011 in respect thereof. The said letter is annexed as Annexure I. The applicant further failed to honour the terms and conditions of the said sanction letter dated 18.11.2011 and approached the bank for CDR empowered group - Mumbai vide request letter dated 25.06.2012 for restructuring of its existing debts under CDR mechanism. The CDR empowered group had ultimately approved the restructuring package on 31.12.2012 and had conveyed the terms and conditions of restructuring to the applicant vide letter No. CDR (PMJ) No. 1014/2012-13 dated 01.02.2013. Copy of said letter is annexed as Annexure J . In view of aforesaid development, the bank had issued sanction letter dated 31.12.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ancial assistance to the applicant on 24106.2011 and at the time of availing such facility the applicant has shown the following persons as Directors of the company: - 1) Mr. Sanjay Gupta (Promoter/Director) 2) Mr. Sandip R. Shah (Additional Director) 3) Mr. Arvind Kumar Gupta (Director) 4) Mr. Suresh Kumar (Additional Director) 5) Mr. Yogesh Ghisumal Gemavat (Addl. Director) However, as per the latest verification with the Ministry of Corporate Affairs website, the applicant company is showing to have the following four directors: - 1) Mr. Sanjay Gupta, (Additional Director) 2) Mr. Arvind Kumar Gupta (Director) 3) Mr. Manoj Kumar Singhal (Director) 4) Mr. Bhaskar Jaswant Jani (Addl. Director) 13. It is further submitted by the bank that the aforesaid development has never been informed to the bank, which clearly indicates that the applicant had some mala fide intention and oblique motive. That, details furnished in Annexure - I (page 7) of the application are incorrect and in contradiction with the list of promoters and Directors furnished at the time of availing the financial facilities from the bank. That, on this ground alone i.e. suppression of facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, on perusal of the record it appears that Mr. Sanjay Gupta obtained Special Power of Attorney in his favour issued by Ms. Neelu Gupta flouting all the norms of the Companies Act thereby the very power given in favour of Mr. Sanjay Gupta is bad in the eye of law and as such the application is not maintainable for want of proper authorisation. 17. As per section 10 of the Code, the applicant has to be corporate applicant as provided under Section 10 (1) whereas the Corporate Applicant as per section 5 (5) defines as follows: (5) Corporate Applicant means (a) Corporate debtor; or (b) a member or partner of the corporate debtor who is authorised to make an application for the corporate insolvency resolution process under the constitutional document of the corporate debtor; or (c) an individual who is in charge of managing the operations and resources of the corporate debtor; or (d) a person who has the control and supervision over the financial affairs of the corporate debtor 18. Admittedly, as also matter of record that, the applicant is not a corporate applicant as per form 6, Clause 3, the applicant is not a director and is disqualified under Section 164, wher ..... X X X X Extracts X X X X X X X X Extracts X X X X
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