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TMI Blog2021 (2) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... n the Board has already resigned and vacated office pursuant to resignation u/s 168 of the Companies Act, 2013 and a situation of deadlock has emerged. However, clause 3 of Form 6 further discloses that the list of promoters along with their address attached - As per the list of promoters/shareholding pattern as on 30-6-2018 (page 11), Mr. Sanjay Gupta holds 23,15,714 shares of the company. Further, the applicant has not filed/disclosed the details of the unsecured financial creditors. However, there are as many as 427 operational debtors as per the list annexed to the application at page Nos. 24-32. However, while going through the records it is found that there is no whisper about the outstanding amount. It is also pertinent to note that if the company is really insolvent, applicant could have opted for winding up/dissolution application. Further, affairs of the company is managed by the Directors and not by the promoters. Since the Directors are already disqualified, the applicant has no authority to file the instant application. It is also a matter of record that objector(s)/banks have already initiated proceedings under RDDB Act, 1993 and SARFAESI Act, 2002 and to install t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is further submitted by learned lawyer of SIDBI that the applicant company had executed various loan documents and created securities by way of hypothecation and mortgage for securing the aforesaid credit facilities and which were duly registered with Registrar of Companies, Ahmedabad. Besides personal guarantees of the promoter-directors and corporate guarantee of its group companies were also executed. That, the applicant turned into non-performing asset (NPA) as on 9-12-2013 and on account of default, legal action was initiated under DRT Act and SARFAESI Act, 2002. 6. SIDBI has also submitted that the application is incomplete. That, the application is filed with malicious intention to avoid the responsibility and liability as envisaged, inter alia, under the Companies Act, 2013. That, documents pertaining to mortgage of property of the corporate applicant being collateral security for loans and facilities granted to group concerns - Neesa Infrastructure Ltd. (NIL) by SIDBI to Neesa Technologies (P.) Ltd. (NTPL)/and to Neesa Leisure Ltd. (NIL) are not enclosed with the petition filed by the corporate applicant. In addition to the same, letter of intents, hypothecation and mor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. Sanjay Gupta, one of the promoters of the applicant was authorised for doing acts as defined in the said power of attorney, however, the directors are not eligible to conduct any meeting to enforce any right under the code. Hence the very power to file case/proceedings is bad. 11. SIDBI has also submitted that when the authorisation itself is improper, bad in law, arbitrary and illegal, it is to be construed that the present application filed is without authorisation and hence the present application deserves to be dismissed forthwith. 12. Central Bank of India (CBI) has also filed objection against the application filed under section 10 of the I B Code by the applicant denying the averments made in the application. It is submitted by the bank that the application filed is incomplete and filed with mala fide intention only with a purpose to avoid the responsibility and liability inter alia under the Companies Act, 2013. 13. Central Bank of India (CBI) has further submitted that the applicant had applied for overdraft facility with the bank and having considered the securities and guarantees offered, the bank had sanctioned overdraft facility of ₹ 85.00 lacs by sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CBI and saying that the applicant has filed the instant petition to buy moratorium and to stall the legal proceedings already initiated and thereby defraud its creditors and to avoid the liability bestowed upon them. 19. M/s. Paisalo Digital Ltd. (formerly known as S.E. Investments Ltd.), a non-banking financial company incorporated under the Companies Act, 1956 having registered office at New Delhi filed Interlocutory Application No. 76 of 2020 stating inter alia that somewhere in August, 2010 the corporate debtor availed loan facilities from the objector company as per agreed terms of the loan agreement. That, the corporate debtor defaulted in the repayment of loans and the objector company invoked the arbitration clause contained in the loan agreements and initiated arbitration proceedings against the corporate debtor and its guarantors. The Ld. Sole Arbitrator passed arbitral award dated 4-12-2015 in favour of the objector company for an amount of ₹ 4,71,65,336/- along with interest @ 18% per annum from 5-12-2015 till realisation and cost of ₹ 2,20,000/-. That, the corporate debtor challenged the aforesaid award dated 4-12-2015 by filing petition u/s 34 of Arbit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and vacated office pursuant to resignation u/s 168 of the Companies Act, 2013 and a situation of deadlock has emerged. However, clause 3 of Form 6 further discloses that the list of promoters along with their address attached. 24. As per the list of promoters/shareholding pattern as on 30-6-2018 (page 11), Mr. Sanjay Gupta holds 23,15,714 shares of the company. Further, the applicant has not filed/disclosed the details of the unsecured financial creditors. However, there are as many as 427 operational debtors as per the list annexed to the application at page Nos. 24-32. However, while going through the records it is found that there is no whisper about the outstanding amount. It is also pertinent to note that if the company is really insolvent, applicant could have opted for winding up/dissolution application. Further, affairs of the company is managed by the Directors and not by the promoters. Since the Directors are already disqualified, the applicant has no authority to file the instant application. 25. On perusal of the record it is found that there is violation of section 10(3) (c). In the instant matter there is no special resolution passed for filing the application ..... X X X X Extracts X X X X X X X X Extracts X X X X
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