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TMI Blog2022 (4) TMI 1036X X X X Extracts X X X X X X X X Extracts X X X X ..... application is filed by a competent person? - HELD THAT:- The Financial Creditor has the proper authority to file the present application through the Power of Attorney Holder, and the objection raised by the counsel for the Corporate Debtor is merely incongruous, and therefore, holds no water. Moreover, the Assistant Vice President of the Financial Creditor had signed the application as an authorised person of the Financial Creditor with specific authorization letter to file Insolvency Application before this Bench. Hence, the technical objection on the ground of maintainability is only for the sake of objecting and hence stands rejected. Whether there is a Creditor-Debtor relationship between the Financial Creditor and Corporate Debtor herein? - HELD THAT:- There is a Creditor- Debtor relationship between the Financial Creditor and the Corporate Debtor, since the Corporate Debtor admitted that they received money from the Financial Creditor through various documents produced before this Tribunal and the Corporate Debtor has no case that they have repaid the money received from the Financial Creditor - the Corporate Debtor failed to honour the conditions in the restructuring ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvoking the provisions of Section 7(4) of the Insolvency and Bankruptcy Code (hereinafter called as Code) against M/s Foodco Delicacies India Private Limited, XI/46R, Trichattukulam P.O., Cherthala, Alappuzha, Kerala- 688 526. (hereinafter called as Corporate Debtor ) stating that the total amount of debt due from the Corporate Debtor is ₹ 11,08,25,240.20/- (Rupees Eleven Crore Eight Lakh Twenty-Five Thousand Two Hundred and Forty and paisa Twenty Only) as on 28.03.2021. The brief facts of the case are as under: - 2. It is stated that the Corporate Debtor availed various Term Loan Facilities and Working Capital Facilities from the Financial Creditor and the Corporate Debtor defaulted in repayment of the facilities and their accounts were classified as NPA on 05.06.2018. But, later on the accounts were upgraded manually considering relaxation under MSME benefits. As the Corporate Debtor did not clear the arrears as assured by them, on 17.9.2018 the accounts were again classified as NPA with effect from 05.06.2018; the original date of classification as NPA. 3. It is stated that the securitisation measures were initiated vide demand notice dated 4.12.2018 which was su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the corporate Debtor can utilize the said opportunity to put forth its proposals in accordance with the Code. The RBI disposed of the representation, stating that it is not considered necessary to issue any direction to the Bank at this stage as sought by the Corporate Debtor in the representation. 5. Since, the Corporate Debtor has failed to comply with its obligations under various facilities extended by the Financial Creditor as mentioned above, the present application has been filed by the Financial Creditor to initiate Corporate Insolvency Resolution Process against the Corporate Debtor under Section 7(4) of Insolvency and Bankruptcy Code, 2016. Submission by the Corporate Debtor 6. The Respondent/ Corporate Debtor filed objection/ reply stating that there is discrepancy in the amounts alleged to be due from the Corporate Debtor. The Financial Creditor had given different figures in its application before the DRT and in the instant Application. Even in this Application, the amounts shown as allegedly due in Part IV of Form 1 varies and does not tally with the particulars provided in the Information Utility. It is further stated that the date of classificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Power of Attorney Holder (POA). The POA having been issued prior to the IBC Code 2016, could not have been relied on for filing the Application. This was objected to by the Corporate Debtor and consequently the Order dated 05.01.2022 came to be passed directing production of the Board Resolution. It is stated that the Board Resolution was not produced, and instead only a letter was produced. This letter would not confer any authority on the person presenting the application. 10. It is also stated that it is well settled that IBC is a complete code in itself, and the provisions and procedures of other statutes cannot be imported into adjudication under IBC. When a summary procedure is provided by the legislature, each party has to present the evidence within the time frame provided in the statute. This is especially crucial in the case of IBC proceedings which are time bound. If a Board Resolution has indeed been passed by the Board of Directors, the Financial Creditor, with the infrastructural and manpower at its disposal, could have produced the same within the time stipulated. The Financial Creditor cannot be permitted to take a casual approach or be given any extra accommodat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion which is as under: Section 238A: Limitation. 238A. The provisions of the Limitation Act, 1963 shall, as far as may be, apply to the proceedings or appeals before the Adjudicating Authority, the National Company Law Appellate Tribunal, the Debts Recovery Tribunal or the Debts Recovery Appellate Tribunal, as the case may be. 14. To get further clarity on this issue, we have gone through Article 137 of the Limitation Act, 1963 which reads as under: PART II-OTHER APPLICATION 137. Any other application for which no period of limitation is provided elsewhere in this Division. Three years When the right to apply accrues. 15. It is settled law as decided by the Hon ble NCLAT in its order in Neelkanth Township and Construction Pvt. Ltd. vs. Urban Infrastructure Trustee Ltd. (Company Appeal (AT) (Insolvency) No. 44 of 2017) that, those provisions of the IBC cannot be shackled by the Limitation Act. It was observed that: There is nothing on record that Limitation Act, 2013 is applicable to I B Code. Learned Counsel for the appellant also failed to lay hand on any of the provisions of I B Code t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Babulal Vardharji Gurjar Vs. Veer Gurjar Aluminium Industries Pvt. Ltd. Anr. (Civil Appeal No.6347 of 2019) decided on 14th August, 2020. It is therefore manifestly clear that date of default will be the date of declaration of account as NPA and such date of default would not shift. From the aforementioned order it is clear that this Application is maintainable before this Tribunal. 18. Point No. (ii). To arrive at a definitive conclusion, with regard to this issue, we have gone through the Power of Attorney dated 21.06.2005 issued to Smt. Kochurani G. Ettil, Assistant Vice President (Legal) by the Chairman and Chief Executive Officer of the Federal Bank Limited. In this respect we had gone through Clause 10 of the Power of Attorney which is quoted hereunder: - To, appear before any Judicial or Quasi-Judicial body including an Court of law, Forum, Tribunal and Banking Ombudsman, institute Suit or Appeal or applications or other proceedings either Civil or Criminal, defend Suit or Appeal or applications or other proceedings either Civil or Criminal filed against Bank, sign Vakalathnama or Plaints or Petitions or written Statements or Affidavits or appeal memorand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nkruptcy Code hence, the said Chief Manager did not have authority. In our view, it is General Power of Attorney and not confined to any particular Act or Acts. We do not find any defect on this account with the Application under Section 7 of IBC. 20. On perusal of the record, we found that the Financial Creditor has the proper authority to file the present application through the Power of Attorney Holder, and the objection raised by the counsel for the Corporate Debtor is merely incongruous, and therefore, holds no water. Moreover, the Assistant Vice President of the Financial Creditor had signed the application as an authorised person of the Financial Creditor with specific authorization letter to file Insolvency Application before this Bench. Hence, the technical objection on the ground of maintainability is only for the sake of objecting and hence stands rejected. 21. Point No. (iii) From the records produced, we could find that there is a Creditor- Debtor relationship between the Financial Creditor and the Corporate Debtor, since the Corporate Debtor admitted that they received money from the Financial Creditor through various documents produced before this Tribunal an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ode. 25. The Application under Sub-Section (4) of Section 7 of I B Code, 2016 is complete in all respects. Accordingly, the application for initiation of Corporate Insolvency Resolution Process against the Corporate Debtor deserves to be admitted. Hence, the Application No. CP(IB)/08/KOB/2021 is admitted and the following order has been passed: - ORDER i. Having admitted the Application, the provisions of moratorium as prescribed under Section 14 of the Code shall be operative henceforth with effect from the date of order shall be applicable by prohibiting institution of any suit before a Court of Law, transferring/encumbering any of the assets of the Debtor etc. ii. The name of the Insolvency Professional Shri. Vinod Padinhare Veettil, suggested by the Financial Creditor is not available in the panel of IPs issued by the IBBI for the period 01.01.2022 to 30.06.2022, for Kochi Bench. In these circumstances, this Bench hereby appoints Mr. Ramachandran Thekkumkat Madathil having Registration No. IBBI/IPA-002/IP-N01071/2021-2022/13715, email id: [email protected] residing at 24-53/2, Flat B, Inscape Illam ,Ragamaligapuram, Kottappuram, Near Kottappuram Railway Gate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all documents in their possession and furnish every information in their knowledge to the IRP within a period of one week from the date of receipt of this Order, in default coercive steps will follow. xi. The Registry is directed to communicate this order to the Financial Creditor, the Corporate Debtor and the IRP by Speed Post and e-mail within two days from the date of this Order. xii. A copy of this Order be sent to the Registrar of Companies, Kerala, for updating the Master Data of the Corporate Debtor, who shall send a compliance report in this regard to the Registry of this Tribunal within seven days. 26. We have also gone through the IA(IBC)/149/KOB/2021 which has been filed by the Corporate Debtor to take on record of the additional objections and to consider the same during the adjudication of the Application under Section 7 of IBC. IA(IBC)/150/KOB/2021 has been filed by the Corporate Debtor questioning the maintainability of this application and IA(IBC)/12/KOB/2022 has been filed by the Financial Creditor to accept the additional document and grant time to produce the Certificate of Registration of Charge. Thereafter they have produced the Certificate of Registr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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