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2017 (12) TMI 1766 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor defaulted in making repayment in respect to ECB facility - existence of debt and default or not - Whether there is any defect in the Power of Attorney as stated by the Debtor or not? - HELD THAT:- The ground reality is, debt and default are not in dispute, that means the creditor proved its case; law cannot become an impediment to achieve justice basing on this reality. In the section of law or in the Rules, it has nowhere been mentioned that power of attorney should not file a case on behalf of the company, it only says that financial creditor can file. The terminology of authorised person is generic in nature, whereas, power of attorney is specific in nature. The phrase "authorised person" is a caption in general, encompassing the caption of "power of attorney", because "power of attorney" is also nothing but authorisation with more rigours. Moreover, the word "Authorised Person" is loosely used without defining it, therefore, the usage of this word "Authorised Person" in the form annexed to Rules cannot invalidate the power of attorney. Power of Attorney defines principal and agent relationship. When an agent is chosen to deal with certain subjects, it need not be seen in which form that subject is, the point to be seen whether subject matter authority is given to him or not - this power of attorney is binding on the creditor bank, therefore, this power of attorney shall be held as valid authorization to proceed against the debtor. Whether pending of appeal over the order dismissing winding up petition against the Corporate Debtor, will have any bearing over adjudication of this case or not? - HELD THAT:- If the proposition of law does not stop the decree upon which appeal is filed, it is far fetching to say that IBC proceedings shall not be initiated looking at an appeal pending over some other proceedings filed against this Corporate Debtor. For the sake of clarity, we reiterate that winding up petition was dismissed against this very corporate debtor. Therefore, this argument of the corporate Debtor counsel saying this case shall not proceed because of pendency of an appeal over the dismissal order over the winding up petition does not hold any merit. Whether this case has to be postponed or not on the ground that on reference (in the matter of Union Bank of India vs. Era Infra Engineering Ltd. [2017 (9) TMI 1078 - NATIONAL COMPANY LAW TRIBUNAL, NEW DELHI]) to the larger Bench on the issue of as to that whether proceeding under IBC can be triggered while winding up petition pending before the respective High Courts against the same Corporate Debtor? - HELD THAT:- Since no winding up petition is pending before High Court as of now against this corporate debtor, except an appeal on dismissal order, this petition cannot be kept under suspension by looking at a fight this very corporate debtor fighting before Appellate Authority for confirmation of the original order. In view of the same the ratio decided in those cases is not applicable to the present case. Whether Reserve Bank of India directives pursuant to the Banking Regulations (Amendment) Act, 2017 has any bearing on adjudication of this case or not? - HELD THAT:- Any circular that is in recommendatory in nature and suggesting IBC proceedings in 12 accounts will not amount to depriving other accounts to be filed before this Adjudicating Authority under IBC provided they fall within the ambit of IBC. Henceforth, we have not found any merit in this argument canvassed by the corporate debtor. Whether Facility Agreements have been inadequately stamped as stated by the Corporate Debtor, if so, whether this petition can be admitted basing on such inadequately stamped Agreement? - HELD THAT:- The corporate debtor counsel has nowhere mentioned how much stamp duty is to be paid, how much is not paid by the Petitioner, his hypothetical argument will not be relevant to decide any case because duty is cast upon the person raising objection. Moreover, facility agreement alone is not the document to prove this case, there is surplus material to prove that debt and default are in existence whereby, this argument is not sufficient enough to deny the claim of Petitioner herein, henceforth, the argument of the corporate debtor is hereby dismissed. Whether formation of Joint Lender Forum will have any bearing over filing of this case or not? - HELD THAT:- It has already been held by the Hon'ble NCLAT Innoventive Industries Ltd. v. ICICI Bank Ltd. [2017 (6) TMI 959 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, MUMBAI] that JLF proceedings pending against the corporate debtor will not have any bearing on the cases initiated under IBC, therefore, this plea is hereby dismissed without having any further consideration on this point. Whether the Statement of Account filed by DBS is in compliance with Part V Serial No. 7 of Form No. 1 or not? - HELD THAT:- The inconsistency is the benchmark to invoke non-obstante clause of this Code upon other enactments. I must also say that when there is a categoric admission falling under Indian Evidence Act, that admission need not be put to proof as envisaged under Section 58 of Indian Evidence Act. Here, when a specific case has been put to the Corporate Debtor saying that the Corporate Debtor borrowed money and failed to repay the same, this Corporate Debtor has nowhere denied about existence of debt and occurrence of default. The Petitioner herein has furnished all the material to prove the existence of debt and occurrence of default. Petition admitted - moratorium declared.
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