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2021 (2) TMI 14 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - outstanding dues - suppression of facts - applicant turned into non-performing asset (NPA) as on 9-12-2013 and on account of default, legal action was initiated under DRT Act and SARFAESI Act, 2002 - HELD THAT:- On perusal of the record it is found that no Board Resolution is ever passed by the company authorising Mr. Sanjay Gupta to file the instant application. Further, on perusal of the record it appears that the applicant company has held one Extraordinary General Meeting (EGM) flouting all the norms of the Companies Act, 2013, thereby the very power given in favour of Mr. Sanjay Gupta is bad in the eye of law and as such the application is not maintainable for want of proper authorisation. Admittedly, as also matter of record that, the applicant is not a corporate applicant as per Form 6, clause 3. The applicant is not a director and is disqualified under section 168 of the Companies Act, 2013 wherein the name and address of the Director is shown as "All directors on the Board has already resigned and vacated office pursuant to resignation u/s 168 of the Companies Act, 2013 and a situation of deadlock has emerged. However, clause 3 of Form 6 further discloses that the list of promoters along with their address attached - As per the list of promoters/shareholding pattern as on 30-6-2018 (page 11), Mr. Sanjay Gupta holds 23,15,714 shares of the company. Further, the applicant has not filed/disclosed the details of the unsecured financial creditors. However, there are as many as 427 operational debtors as per the list annexed to the application at page Nos. 24-32. However, while going through the records it is found that there is no whisper about the outstanding amount. It is also pertinent to note that if the company is really insolvent, applicant could have opted for winding up/dissolution application. Further, affairs of the company is managed by the Directors and not by the promoters. Since the Directors are already disqualified, the applicant has no authority to file the instant application. It is also a matter of record that objector(s)/banks have already initiated proceedings under RDDB Act, 1993 and SARFAESI Act, 2002 and to install the said proceedings, the applicant has filed the instant application, so as to initiate moratorium and to get stayed the proceedings initiated by the banks - Company Petition stand dismissed as not maintainable.
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