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TMI Blog2023 (8) TMI 859X X X X Extracts X X X X X X X X Extracts X X X X ..... ving not been heard. At this point, we cannot restrain ourselves from observing that such unreasonable and unexplained delays in delivering verdicts are not desirable. Be that as it may, the hyper-technical and opportunistic pleas raised by the Appellant to stymie the admission of CIRP of the Corporate Debtor cannot be countenanced either. There are no sufficient and plausible grounds made which warrant any interference with the impugned order. There is no merit in the appeal. The appeal is dismissed. - [ Justice Ashok Bhushan ] Chairperson And [ Barun Mitra ] Member ( Technical ) For the Appellant : Mr. Joy Saha, Sr. Advocate with Mr. Nikunj Berlia, Mr. Dhruv Surana, Mr. Arya Hardik, Mr. Rajeev Ahuja, Advocates For the Respondent : Mr. Sanjiv Sen, Sr. Advocate with Mr. Ankit Kohli, Ms. Anjali Singh, Mr. Mridul Suri, Advocates for R-2 Mr. Gaurav Sethi, Mr. Deeptanshu Chandra, Advocates JUDGMENT [ Per : Barun Mitra, Member ( Technical ) ] The present appeal filed under Section 61 of Insolvency and Bankruptcy Code, 2016 ( IBC in short) by the Appellant arises out of the Order dated 26.06.2023 (hereinafter referred to as Impugned Order ) passed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed for orders. The orders were pronounced on 26.06.2023 in which the main petition CP(IB) No. 367/2021 was allowed and the Corporate Debtor was admitted to CIRP. The Corporate Debtor is aggrieved that though hearing was done only in respect of IA No1184/2022 regarding the maintainability of the main petition and not for the main petition but surprisingly the order was passed on the main petition admitting the Corporate Debtor to the rigours of CIRP. Hence the Corporate Debtor has invoked the appellate jurisdiction of this Tribunal. 3. The Learned Senior Counsel for the Appellant submitted that in the course of their business relationship, a sum of Rs.90,67,72,108/- was transferred by the Financial Creditor to the Appellant against which a sum of Rs. 99,91,99,247/- was already repaid. However, the Financial Creditor by making certain fraudulent entries on blank agreements have dishonestly claimed that an amount of Rs.131,35,08,475/- was due and filed a Section 7 application. It was asserted that no dues were payable and that a sum of Rs 9 crore had been paid in excess. 4. It was further contended that the main petition was not maintainable because of discrepancy in the Power o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nounced after a gap of more than six months and that too without hearing the main petition. 7. The Learned Senior Counsel for the Respondent No.1 contesting the submissions made by the Appellant stated that the debt has been clearly established from the loan agreements. Since the Corporate Debtor failed to repay the debts despite several demands made by the Financial Creditor, both the necessary ingredients of debt and default having been met, it was a fit case for admitting Section 7 application. 8. Submission was made by the Learned Senior Counsel for the Respondent No.1 that the Appellant is merely trying to clutch on to hyper-technical pleas of maintainability of the main petition to stonewall the admission of Section 7 application. Claiming that the main petition was legally valid, it was stated that the Financial Creditor in its board meeting of 15.01.2018 had permitted the Chairman to execute a PoA on 31.03.2021 in favour of Mr. Projoy Chatterjee to pursue legal matters. When the Board of the Financial Creditor was superseded on 08.10.2021, the RBI appointed an Administrator. Mr. Projoy Chatterjee s authority to pursue legal matters on behalf of the Financial Creditor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y for the first time on 25.01.2022, in view of ongoing Covid pandemic, four weeks time was given to the counsel of Corporate Debtor to file reply affidavit and next hearing was fixed on 04.04.2022. On 04.04.2022, the Financial Creditor sought time to seek instructions from the Administrator to make necessary amendments to the main application. This was allowed and the related IA 430/2022 for re-signing and re-verifying the main petition which was filed by the Financial Creditor came up for hearing on 30.06.2022 where both parties were present. It is clear from the orders that the amendments sought to be made by the Financial Creditor were held to be formal in nature and was allowed. The counsel of Corporate Debtor was also given the liberty to take all available defences including maintainability of the main petition. We notice at this stage that the orders of the Adjudicating Authority in IA 430/2022 were however not challenged and therefore attained a finality. 12. Thereafter the main petition came up for hearing on 11.07.2022 when the counsel of Corporate Debtor sought two weeks time to file reply affidavit which was allowed and next hearing fixed for 08.08.2022. The counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Financial Creditor Mr. Joy Saha, Sr. Adv. : Mr. Nikunj Berila, Adv.Mr. R. Lakhmani, Adv. For Corporate Debtor ORDER 1. Ld. Sr. Counsel/Counsel for the parties present. 2. IA(I.B.C)/1200(KB)2022 i. This IA has been filed for seeking one days time for filing reply affidavit. The right to file reply affidavit was closed on 12th of September, 2022. Reasons to recall order dated 12th of September, 2022 mentioned in para 4 and 5 of this IA which is duly supported by an affidavit. ii. We have considered the averments contained in this IA and heard the counsel for the parties. iii. In view of the position stated in this IA, we allow the Corporate Debtor to file reply affidavit by tomorrow. Rejoinder, if any, be filed within two days. iv. IA is accordingly allowed and disposed of 3. IA(I.B.C)/1184(KB)2022 i. Reply affidavit, if any, be also filed. List this IA on 21/11/2022. 4. List the main CP along with IA (I.B.C)/1184(KB)2022 on 21/11/2022 Balraj Joshi Member (Technical) Rohit Kapoor Member (Judicial) (Emphasis supplied) 13. We take notice that several hearings had taken place and the Adjudicating Authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling IA 657/2023 was to draw the attention of the Adjudicating Authority to the fact that IA No. 1184/2022 which raised frivolous grounds so as to delay the CIRP being integral to the main petition and both having already been heard, an interim injunction be passed till the orders reserved are pronounced. 15. This now brings us to the issue of tenability and maintainability of the main petition in the eyes of law. It is the contention of the Learned Senior Counsel for the Appellant that this Tribunal in Palogix Infrastructure Pvt. Ltd. Vs. ICICI Bank Ltd. 2017 SCC OnLine NCLAT 266 has held that a company petition could not be instituted on the basis of a PoA which view has also been affirmed by the Hon ble Supreme Court in Rajendra Narottamdas Sheth vs. Chandra Prakash Jain (2022) 5 SCC 600. We entirely agree with the proposition of law laid down in the above two judgments. But we must add that the Learned Senior Counsel for the Appellant has missed out the point that mere use of the word PoA does not take away the power to file a section 7 application as long as a general authorization has been made for its officers to do the needful in legal proceedings which authorization are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e main company petition on 22.11.2021. When Mr. Projoy Chatterjee resigned from the services of the Financial Creditor, the Administrator had executed another PoA on 01.04.2022 in favour of Mr. Sohan Kumar Jha, and he was empowered to contest legal proceedings on behalf of the Financial Creditor as at pages 1969-1973 of APB. After execution of the second PoA, the Adjudicating Authority on 04.04.2022 had directed the Financial Creditor to obtain proper instructions from the Administrator to make necessary amendments to the pleadings in the company petition. Accordingly, IA No.430/2022 was filed by the Financial Creditor which was allowed by the Adjudicating Authority on 01.07.2022. Thus, Mr. Sohan Kumar Jha had re-signed and re-verified the main company petition and this order was not challenged by the Appellant and had therefore attained finality. That being the case, we are of the considered view that the institution of the main petition and continuance of the proceedings on behalf of the Financial Creditor has been done by duly authorized persons at all points of time and therefore the Adjudicating Authority did not commit any error in finding the main petition to be maintainable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, rejoinder filed by Financial Creditor, averments along with documents in reply/rebuttal by Corporate Debtor, a debt was due from the Corporate Debtor to the Financial Creditor and the Corporate Debtor has committed a default in the payment of the same. 11.8 Now, coming to the plea of Corporate Debtor the Financial Creditor had obtained signatures of the Corporate Debtor on blank paper and Financial Creditor fraudulently, incorrectly, unilaterally inserted in the agreement dated 16.06.2017, we have perused and considered the averments, rebuttal to it and the said agreement dated 16-06-2017. This Adjudicating Authority is of a considered opinion that such allegations made by the Corporate Debtor on the face of it are without any basis, merely a rhetoric/attempt to wriggle out of its obligations in law to pay its debt due to the Financial Creditor. We may, while rejecting this plea from the corporate debtor, reiterate reference to E-mail dated 5-08-2022 seeking restructuring of debt by Corporate Debtor. 11.9 Considering the above-mentioned documents, facts and circumstances and the law laid down and cited above, this Adjudicating Authority is satisfied that a debt was due ..... X X X X Extracts X X X X X X X X Extracts X X X X
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