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2018 (6) TMI 1262 - Tri - Insolvency and BankruptcyCorporate Insolvency Resolution Process - existence of default - petition filled by person authorized - Held that:- Clause 24 clearly authorized the power of attorney to act on behalf of the Bank in all matters incidental to or arising out of the bankruptcy or insolvency or any compromise or arrangement with the creditors. In pursuance thereof, he has signed power of attorney, pleadings and other papers. Even otherwise the general Power of Attorney is a widely worded document and it has various clauses empowering the attorney to file any proceedings before Courts or Tribunal. Therefore, it is established that the petition has been filed by a person authorized in accordance with law. The affidavit and the vakalatnama have also been signed by the aforesaid officer. In view thereof, we do not find any substance in the objection raised on behalf of respondent. In order to ascertain whether the default has occurred it will be profitable to read Section 3(12) of the Code which states that default means non-payment of debt when whole or any part of the instalment of the debt has become due & payable and that the same has not been repaid by the ‘Corporate Debtor’. In the present case, it has come on record eminently that the ‘default’ has occurred many a times. Therefore, it would not be such a substantial and a material factor warranting the dismissal of the application. The Resolution Professional shall have to proceed in accordance with the statement of accounts and other supporting evidence. The argument pressed to oppose the admission of the petition advanced on behalf of the Corporate Debtor cannot be accepted because the amount of default and unpaid debt as per the Statement of Accounts has been proved. Such a piece of documentary evidence result into a binding presumption. The Corporate Debtor has failed to rebut that legally binding presumption by producing any cogent documentary evidence to the contrary on record. Therefore, dispute concerning the Principal amounts shown in application as are different from amount given in account statements cannot conceded. The other arguments of the Corporate Debtor would also not cut any ice because during pendency of present application as well as after hearing the final arguments we have granted ample time to the Corporate Debtor to come forward and prevail upon the Financial Creditor to accept its offer. However, nothing could be achieved. We reserved the order and even during this interregnum period no fruitful result has come forward. Secondly the object of the ‘Code’ to resolve the insolvency issue and it could not be achieved merely by refusing to admit the petition. The resolution as against liquidation would only be possible if the Corporate Insolvency Resolution Process is triggered and efforts in that direction are made. Therefore, admission of the petition cannot be successfully resisted on such a flimsy ground.
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