TMI Blog2017 (3) TMI 1574X X X X Extracts X X X X X X X X Extracts X X X X ..... 2014. In any case the applicant has also failed to furnish the necessary Board Resolution for granting the loan to the respondent all of which literally clouds the transaction of loan itself. Even in relation to the service of notice there seems to be glaring anomaly as both the speed post and courier through which the notice dated 13.01.2017 seems to have been dispatched seems to have not been delivered or delivered at some other place. However Annexure XII which is claimed to be acknowledgement of liability alleged to have been issued by the respondent reflects the same address to which the notices were sent by the applicant but from which address the postal authorities report that the addressee (meaning the respondent) had moved thereby casting a cloud on the application itself as that of collusive as between the parties. Taking into consideration all the above, we are unable to feel persuaded to admit the application - Company Application No. (I.B.) 13/PB/2017 - - - Dated:- 8-3-2017 - M. M. Kumar (CJ.) Retd. (President) And R. Varadharajan, Member (J) For the Petitioner : P. K. Mittal, Advocate For the Respondent : Rajnish Sinha, Advocate ORDER 1. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpany has not denied the liability to the applicant and has expressed its inability to pay the amounts vide its communication dated 17.01.2017 (Annexure XII). That the latest available annual accounts of the respondent company discloses that the liabilities far exceeds the assets and it is a fit case for winding up as is evident from Annexure XIII. (vii) Mr. Manish Agarwal, Chartered Accountant has been named as the Insolvency Resolution Professional who is registered with the Insolvency and Bankruptcy Board of India as evidenced from the certificate issued and that the said resolution professional has also given his consent to act as such.(Annexure XIV). 3. Based on the facts and submissions, the following reliefs prayers are being sought: a) Present application may kindly be admitted for further hearing; b) Order for appointment of interim resolution professional; c) Order for any consequential relief as are available under the Insolvency and Bankruptcy Code; d) Waive any requirement as may be permissible under the law; e) Any other order or orders or relief or reliefs as this Hon'ble Tribunal, deem fit and proper, under the circumstances of the whole cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indeed a corporate person , other than a mere statement to the said effect, in Part II of the application. Going further it is pertinent to note that Section 5(4) of the IBC defines in relation to a Corporate Person what can be considered as the constitutional document which includes the articles of association and a memorandum of association of a company which also has not been produced. Further the present status of the respondent has also not been substantiated with adequate documents to show that the respondent who it is claimed to be a Corporate Person is in fact presently in existence, which is per se quite essential for initiating the Corporate Insolvency Process. In other words the Corporate Person should not have been wound up or in the process of being wound up. Hence the status report of the Corporate Person becomes a sine qua non to establish the existence of a corporate person in the first place at the time of initiating the corporate insolvency process as contemplated under IBC at the instance of the applicant. A perusal of Section 11 of the IBC which deals with inability of a person to make an application mandates that in case the Applicant happens to be a ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Adjudicating Authority shall, before rejecting the application under clause (b) of sub-section (5), give a notice to the applicant to rectify the defect in his application within seven days of receipt of such notice from the Adjudicating Authority. (6) The corporate insolvency resolution process shall commence from the date of admission of the application under sub-section (5). (7) The Adjudicating Authority shall communicate - (a) the order under clause (a) of sub-section (5) to the financial creditor and the corporate debtor; (b) the order under clause (b) of sub-section (5) to the financial creditor, Within seven days of admission or rejection of such application, as the case may be. 8. In the absence of Information Utility, a question arises has the applicant claiming to be a financial creditor, discharged the initial onus and that the certifying professional thereafter has done his duty in certifying to the following effect: I, hereby, certify that the facts averred by the applicant in the present application are true, accurate and complete and a default has occurred in respect of the relevant corporate debtor. I have reached this conclusio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elation to the loan transaction termed as Inter Corporate Deposit between two companies in relation to amounts made available as loan subsequent to 01.04.2014. In any case the applicant has also failed to furnish the necessary Board Resolution for granting the loan to the respondent all of which literally clouds the transaction of loan itself. 12. Further in relation to Notice of Default as furnished by the applicant (Annexure IX) and taken together with proof of dispatch as well as proof of delivery, (Annexure X and XI read with Annexure XII), being the so called acknowledgement raises serious questions about the bonafide of the parties herein. They appear to have stage managed the entire petition with an ulterior motive. At page 30 of the application, the applicant has filed a certificate issued by the statutory auditor of the applicant in relation to Ledger Account of King Airways Ltd. A perusal of the same prima facie discloses that the said certificate is dated 30.11.2016, however the certificate is in relation to the period between 01.04.2014 to 23.01.2017 i.e. for a period subsequent to the date of the certificate. Curiously the notice along which the said certificate has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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