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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 ..... t. Ahmedabad, Gujarat State. 3. On issuance of notice, the financial creditors viz. Small Industries Development Bank of India (SIDBI), Central Bank of India and ICICI Bank Ltd. appeared through counsels and filed objections. 4. Learned counsel for SIDBI submitted that there is suppression of facts, therefore, the instant application is not maintainable. It is also submitted that the application has been preferred by the applicant under section 10 of the I&B Code with a prayer for initiating corporate Insolvency Resolution Process (CIRP) against the applicant company and issuance of directions for activating the moratorium under section 14 of the Code. It is submitted that on the request of the applicant company, SIDBI had from time to time during FYs 2006 to 2013 sanctioned term loans vide various sanction letters under different schemes aggregating to Rs. 10.99 crores out of which the outstanding as on 16-6-2019 is Rs. 7.14 crores. Further, a limit of Rs. 5.00 crores were sanctioned under Receivable Finance Scheme and outstanding of Rs. 2.33 crores there against which was converted into working capital term loan out of which the outstanding as on 17-6-2019 is Rs. 2.33 crores. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bstantial information with respect to the properties mortgaged, securities charged and collateral given for borrowings from the respondents. That, despite requests/reminder letters, notices and recall notice, the applicant did not repay the outstanding dues. Therefore, the respondent bank filed recovery proceedings before the Debts Recovery Tribunal, Ahmedabad and if such proceedings are stayed, recovery proceedings under DRT would not have any essence, if the corporate debtors like the present one seeks for voluntary insolvency as envisaged under the Code. 9. SIDBI has also submitted that since the last annual general meeting was conducted in the year 2013 and the last balance sheet was filed in the year 2013. That, as per the provisions of law, Directors of the applicant are disqualified and are not eligible to conduct any meeting. Therefore, the application is filed to avoid the repercussions of non-compliance inter alia with the Companies Act, 2013 and take shelter under the moratorium of the Code. 10. SIDBI has also submitted that the applicant filed the insolvency application based upon the Special Power of Attorney signed in extraordinary general meeting, wherein, one Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the RDDB Act, 1993. That, the applicant has deliberately not enclosed the copies of various documents executed in favour of the bank. 16. Central Bank of India (CBI) has further submitted that the instant insolvency application filed under section 10 of the IB Code, 2016 is with malice intention to stall the recovery proceedings pending before DRT-I, Ahmedabad, as after the admission of the present petition, the moratorium under section 14 of the Code shall be commenced and thus all the proceedings shall be stayed automatically. 17. Central Bank of India (CBI) has also submitted that the applicant filed the insolvency application based upon the Special Power of Attorney signed in extraordinary general meeting, wherein, one 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 and hence the applicant is required to put to strict proof thereof. 18. ICICI Bank Ltd. also filed objections cum affidavit in reply inter alia reiterating the objections on the same lines raised by SIDBI and CBI and saying that the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2013, 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. 22. 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. 23. 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 168 of the Companies Act, 2013 wherein the name and address of the Director is shown as "All directors on the Board has already resigned and vacated office pursuant to resignation u/s 168 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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