9911796707
TMI Blog2023 (3) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... - Invesco Asset Management (India) Private Limited/Financial Creditor against the M/s Sintex Industries Limited/Corporate Debtor was admitted by the Adjudicating Authority and further I.A. No. 147 of 2021 filed by the Respondent No. 2 (herein) seeking direction to refer the matter to conciliation, was also disposed of, observing that in view of the admission of Company Petition, the I.A. No. 147 of 2021 has become infructuous. 2. The facts giving rise to the instant Appeal are as follows: i) The Appellant is the promoter shareholder and suspended director of the Corporate Debtor. The Respondent No. 1 is the original Applicant who had moved the application under Section 7 of the IBC (hereinafter referred to as the Insolvency Application). The Respondent No. 2 is the Corporate Debtor represented through the Interim Resolution Professional. The Respondent No. 1 has filed Section 7 petition dated 06.11.2019 being CP(IB) No. 848 of 2019 before the NCLT, Ahmedabad and the Adjudicating Authority vide order dated 06.04.2021 admitted the insolvency petition against Sintex Industries (Corporate Debtor). ii) The present insolvency application had come to be filed before the Adjudicating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10,00,000/- each bearing ISIN INE429Co7507 and bearing coupon of 10.70% p.a. and aggregating to Rs. 15,00,00,000/-. The Corporate Debtor defaulted on the due date mentioned in the total principal amount of Rs. 15,00,00,000/- along with interest @ 10.70% p.a. amounting to Rs. 15,40,01,506.85 as on 30th September, 2019 along with 2% p.a. default interest till the date of payment of all outstanding amounts. A sum of Rs. 20,00,000/- has been paid by the Corporate Debtor on 23rd October, 2019 as part payment towards the amount outstanding and further sum of Rs. 10,00,000/- and Rs. 10,01,507/- have been paid by the Corporate Debtor on 08th November, 2019 and 11th November, 2019 respectively. The default occurred on 30th September, 2019 towards principal of Rs. 15,00,00,000/- along with interest @ 10.70% per annum. Thereafter, the Financial Creditor / Respondent No. 1 (herein) has filed Section 7 petition dated 06.11.2019 being CP(IB) No. 848 of 2019 before the NCLT, Ahmedabad and the Adjudicating Authority vide order dated 06.04.2021 admitted the insolvency petition against Sintex Industries (Corporate Debtor). Hence this Appeal. 3. The Ld. Counsel for the Appellant during the course of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent No. 1 herein, being Invesco Asset Management (India) Pvt. Ltd. is effectively a 3rd party vis-à-vis the purported financial creditor, being the Invesco Trustee Private Limited and the power delegated pursuant to the board resolution is effectively nothing but an appointment of power of attorney, disguised as a board resolution, since it is pertinent to note that the board resolutions of matters filed by banks etc under Section 7 of the IBC, delegate power to an officer of the bank itself but do not delegate power to a 3rd party to file the Section 7 application on its behalf. Hence the present case gets hit by the said judgment of this Tribunal and hence insolvency application deserves to be dismissed on this ground also. 6. It is further submitted that immediately prior to the passing of such board resolution of 18.10.2019 by Invesco Trustee Private Limited claiming to be trustee of the debentures in question, attention is drawn before the Adjudicating Authority to letter dated 01.10.2019 issued by Dhruve Liladhar & Co., solicitors, for and on behalf of Invesco Asset Management (India) Private Limited where just 18 days before the passing of such board resolution, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at stake. 9. It is further submitted that the Corporate Debtor had also filed application being I.A. No. 38 of 2021 seeking to take its reply on record in main Company Petition (IB) No. 848 of 2019. That no reply has come to be filed by Respondent No. 1. The Corporate Debtor had also filed application being I.A. No. 147 of 2021 seeking to refer the Section 7 petition to conciliation predominantly in the interest of thousands of workers of the Corporate Debtor. The contents of the said IA are deemed to be part and parcel of the present petition and are not repeated and/or reiterated to avoid bulk. In this also no reply was filed by the Respondent No. 1. That on next date of hearing being 19.02.2021, the conducting Advocate for the Corporate Debtor was on his legs before the Hon'ble High Court, when the matter was called out and hence the matter was adjourned. That on 23.03.2021, unfortunately, the conducting lawyer was not available for the Corporate Debtor and request was made for adjournment and thereafter for Passover, which was not entertained and the matter was reserved for order. It is pertinent that opportunity of hearing be given of oral arguments, since there are concrete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the judgment. * This Tribunal decided the question of whether a constituted attorney of a company could file an application under Section 7 (para 3). In the present Appeal, there is no constituted attorney and the application was filed pursuant to a board resolution of the trustee of the Fund. Importantly, in Palogix, this Tribunal held that a Board resolution authorising officers to do the needful in legal proceedings can be used to file Section 7 proceedings (para 36). * It was further held that a person who was authorised to sanction a loan on behalf of an entity could also file an application under Section 7 (para39). In the present case, the Respondent No. 1 has the authority to invest the funds of the Fund under the SEBI (Mutual Fund) Regulations, 1996. Thus, even as per Palogix, Respondent No. 1 had the right to file the Section 7 Application. 12. The Fund's authority to initiate CIRP independently of the Debenture Trustee. * The powers of the debenture trustee for enforcing security or getting repayment from a Corporate Debtor do not preclude the beneficial owners of the debentures to file proceedings in rem, such as CIRP against the debtor. In the matter of "Essar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sts, Infrastructure Investment Trusts may file for CIRP through their trustee, asset management company, etc." * The Respondent No. 1 has the authority to invest funds on behalf of the Fund and therefore, as per the judgment in Palogix Infrastructure, cited by the Appellant, it was fully entitled to file a Section 7 Application on behalf of the Fund. * Further, the notification dated 27th February, 2019 issued by the Central Government (which notifies a list of persons who may file an application under Section 7(1) of the IBC), states inter alia that a person duly Authorised by the Board of Directors of a Company may file such an application. Ms. Nupur Tainwala has been duly authorized by the Mutual Fund Trustee by its resolution dated 18th October, 2019 (at page 233 of the Appeal). Therefore, even assuming that the Mutual Fund Trustee and not Respondent No. 1, is the Financial Creditor, this does not take the case of the appellant any further, since the Trustee has authorised Ms. Nupur Tainwala to file the Section 7 Application vide its Board Resolution and thus the said application was validly filed. 14. The NCLT rightly dismissed the interim applications filed by the Corpor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the same is pending before the Adjudicating Authority for approval of the resolution plan. 17. I.A. No. 1933 of 2021 has been filed in the instant Appeal by the Applicant- Punjab National Bank, representing Committee of Creditors, Sintex Industries with a prayer to allow the instant application of the Applicant to intervene in the present Appeal. We have heard the Ld. Counsel for the Intervenor and found that there no separate order is required to be passed in this I.A. Thus, the I.A. No. 1933 of 2021 is hereby disposed off. 18. After hearing the parties and going through the pleadings made on behalf of the parties, we are fully in agreement with the reasons assigned by the Adjudicating Authority whereby objection raised by the Respondent (before the Tribunal) / Appellant so far authorized representative of the Financial Creditor is concerned, the Adjudicating Authority rightly found that on 18.10.2019 a board resolution was passed by Invesco Trustee Pvt. Ltd., whereby, Ms. Nupur Tainwala, Assistant Vice President-Legal of Invesco Asset Management (India) Pvt. Ltd. is authorised to file any case/suit etc. before any court of law, tribunal, quasi-judicial process etc. which c ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
