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2021 (12) TMI 1235 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - maintainability of application filed without authorisation - application is barred by limitation or not? - HELD THAT:- When the respondent itself admitted the fact that the amount of ₹ 63,25,464 was shown in the balance-sheets till July 19, 2018 and written-off on July 20, 2018. When the fact is admitted by the respondent there is no need to prove the said fact by the petitioner in view of section 58 of Indian Evidence Act, 1872. For the reasons discussed above it is concluded that the application is not barred by limitation. Whether genuine pre-existing dispute is there between the parties? - HELD THAT:- It is not known how long the track report available on the public domine, further it is stated that the letters were sent by private courier so the presumption available under section 27 of the General Clauses Act, 1897 cannot be invoked. In this situation petitioner side not proved that the said letters were sent as averred in the petition. Thus, on the respondent side raised the acceptable dispute regarding the entitlement of petitioner for the amount claimed in the petition and the interest - The respondent in its reply notice dated September 6, 2019 denies its liability, the dispute raised by the respondent is substantial in nature it needs further investigation. Thus, this point is answered. Whether the application filed without authorisation of the applicant-company is maintainable? - HELD THAT:- The operation creditor is a company registered under Companies Act, 1956. In the application there is no averments how the person who filed this application is competent to file the application on behalf of company. Even though he is designated as managing director would have no authority to file the application on behalf of company. There is no board resolution passed authorising the person who filed this application on behalf of the company. In form 5, Chapter II serial No. 6 specifically requires to enclose authorisation. The non-filing of board resolution goes to the root of the case. In this situation it is answered that the application filed on behalf of operational creditor without the authorisation is not maintainable. As per section 9(5)(ii)(a) if the petition is incomplete same shall be rejected, provided seven days' time shall be granted to rectify the defect - Petition dismissed.
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