TMI Blog2018 (1) TMI 1246X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst the Corporate Debtor namely, Ruchi Soya Industries Ltd. to initiate Corporate Resolution Process on the ground that this Corporate Debtor defaulted in making repayment of USD 5,358,742.84 as on 31.8.2017 and ₹ 334,14,19,044 as on 31.8.2017 in respect to the external borrowing of USD 15,895,000 and working capital facilities of ₹ 335,50,00,000 availed by Ruchi Infrastructure Limited in the year 2012. 2. Since this Corporate Debtor acquired Ruchi Infrastructure Ltd, though this loan facility was initially availed by Ruchi Infrastructure Ltd., the liability being fastened with this Corporate Debtor, this Company petition is filed against this Corporate Debtor. 3. ECB facility was originally granted by this Creditor to Ruchi Infrastructure Ltd vide an Agreement dated 27.1.2012 with repayment schedule as mentioned in Clause 5(1) of the aforesaid Agreement, it has been modified twice in respect to the securities created by creating charge over movable and immovable assets of Ruchi Infrastructure. It has admittedly withdrawn entire loan amount of USD 1,58,95,000 in February, 2012. Since RBI granted its approval for transfer of this ECB loan from Ruchi Infrastructur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch contending that the JLF has been formed by saying that this Creditor unilaterally levied penal interest over the loans taken by it. The Bank statement of the Corporate Debtor as on 31.8.2017 reflects that the amount due and payable by the Debtor was about ₹ 334.14 crores. 5. To prove that the debt has been in existence and the default has occurred for not being paid by the Corporate Debtor, the Creditor herein, as to External Commercial Borrowing, annexed Facility Agreement dated 24.1.2012, Utilisation request dated 1.2.2012, Memorandum of Charges dated 16.8.2012, Amendment Agreement dated 24.6.2013, RBI Approval letter dated 16.5.2014 for transfer of ECB from Ruchi Infrastructure Ltd to the Corporate Debtor, Novation Deed dated 31.5.2015 between the Corporate Debtor, Ruchi Infrastructure Ltd and the Financial Creditor situated at London and the Branch of the Financial Creditor at Chennai, Second Amendment Agreement dated 18.6.2015, Memorandum of Hypothecation dated 30.6.2015 and various email correspondences between this Creditor and the Corporate Debtor from 26.8.2016 till 20.7.2017 disclosing demands and acknowledgements passed in between the Petitioner and the Corpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Attorney given to Pallav Sangal as defective, that the determination of default by the Financial Creditor is not in compliance with requirements under Bankers Books of Evidence Act, 1891, that the Certificate of Registration of Charge created against the Corporate Debtor is defective, that the Facility Agreement is not adequately stamped, that an appeal arising from the dismissal of winding up petition is pending before the Appellate Authority, that since JLF process has been initiated, this Bank is bound by the directions of RBI, this Creditor Bank should not have filed this petition in violation of the directions of RBI and that to file this Company petition as to External Commercial Borrowing Facility, jurisdiction lies with the English law but not before this Bench. 10. On looking at the Petition filed under Section 7 of the Code along with the annexures and the opposition filed by the Corporate Debtor, it is crystal clear that this Corporate Debtor has neither disputed granting of ECB facility and working capital facility or withdrawing the facilities granted, nor even disputed the occurrence of default. The objections raised by this Corporate Debtor are procedural in nat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Zarin Daruwala herself being Power of Attorney, the Corporate Debtor Counsel says, she cannot further delegate her authority to Pallav Sangal to file this Company Petition. Another objection the Corporate Debtor Counsel raised is since the Power of Attorney given to Zarin Daruwala being dated 1.4.2016, for this be ng evident that this Power of Attorney was given prior to advent of Insolvency Bankruptcy Code, Zarin Daruwala has no authority to authorise Pallav Sangal to institute Insolvency proceedings under IBC for she herself has no authority to delegate her authority to Pallav Sangal to initiate proceedings under Insolvency Bankruptcy Code, 2016 because the Power of Attorney to Zarin Daruwala is antecedent to the arrival of Insolvency Bankruptcy Code. To which the answer given by the petitioner counsel is that by oversight the Power of Attorney given on 27.6.2017 has been annexed twice to the petition instead of annexing the Power of Attorney dated 11.7.2017 along with the Power of Attorney dated 27.6.2017. But in the index given to this Company petition, it has been categorically mentioned that Power of Attorney dated 11.7.2017 as Exhibit MM with page nos. 623 and 624 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by those Court of Directors cannot be said invalid just because a resolution has not been passed as stated under Companies Act, 2013. Moreover, when it is not the case of the Corporate Debtor that debt is not in existence and default is not occurred and for there being no dispute from the bank side saying that authority given to Pallav Sangal is disputed by the insiders of the bank, how could this Corporate Debtor raise this dispute saying that power of attorney is defective. There is a material to say that Zarin Daruwala has been given overall authority to manage this Bank in India and when there is a special authority to Pallav Sangal to institute proceedings including insolvency proceedings under authority given on 11.7.2017, it is inconceivable to say that the authority given to Pallav Sangal is defective therefore, we have not found any merit in the submission made by the Corporate Debtor. b. Whether Statement of Accounts have been properly certified as envisaged under Bankers Books of Evidence Act, 1891? The bank has filed certificate as contemplated under Section 2(A) of the Bankers Books Evidence Act, therefore it can t be said that it can t be taken on record on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... saying that since ECB facility is to be governed by English Law, if any proceeding is to be initiated, it has to be initiated before English Court, not before any other court, therefore, this proceeding should not lie before this Bench, as to which, the Petitioner Counsel submits that since this Company is located in India governed by the laws of India, if at all the Petitioner wants to invoke insolvency proceedings, it has to be invoked against this company in India only. That being the situation, it is always open to the Petitioner to avail jurisdiction available to it either in England or in India. In view of this reason, we don t find any merit in the objection raised by the Corporate Debtor in respect to the jurisdiction, hence, this point is decided against the Corporate Debtor. 13. For none of the objections raised by the Corporate Debtor are sustainable, for the Petitioner has already proved that for the Corporate Debtor availed loan facilities by entering into various agreements and thereafter, defaulted in making repayments, therefore, we hereby held that this Petition is fit to be admitted under Section 7 of Insolvency Bankruptcy Code, 2016, whereas this Bench inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... constitutes an Event of Default and an event of cross default occurs when any Financial indebtedness of Ruchi Soya is not paid when due or within originally applicable grace period. In pursuance of these terms and conditions, when Ruchi Soya submitted three utilisation requests, one for USD 10 million on 8.3.2011, two for USD 5 million on 16.3.2011 and three for another USD 5 million on 26.4.2011, DBS accordingly, transferred USD 10 million on 10.3.2011, USD 5 million on 19.3.2011 and remaining USD 5 million on 29.4.2011 to the Corporate Debtor. 3. As to ECB-II, DBS entered into another Facility Agreement with Ruchi on 15.2.2012 in the same line as above by entering into the Agreement showing its Branch at Mumbai as Arranger and Bank at Singapore as Lender for providing Term Loan Facility to Ruchi Soya for an amount of USD 30 million, like in the above case, Ruchi Soya having submitted two utilisation requests to DBS for USD 15 million each on 1.3.2012 and 4.4.2012, DBS Bank transferred USD 15 million each on 5.3.2012 and 9.4.2012 to the account of Ruchi Soya. 4. The first instalment under ECB-I fell due in the month of September, 2014, until such time, Ruchi regularly made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emature on account of ongoing discussions in JLF, which DBS is fully aware because it also participated in the JLF meetings. In July, 2017, DBS Bank Ltd., Mumbai as the Authorised Dealer of Ruchi Soya filed ECB-II with RBI disclosing that an amount of USD 5 million and USD 9 million are the outstanding principal amounts under the ECB Facility Agreements against the facilities availed by Ruchi Soya. Since part payments have been made and acknowledgements have been given from time to time by Ruchi Soya to DBS Bank, these loans have remained alive as on the date of filing this Company Petition. As the Bank could not realise its outstanding dues from Ruchi Soya, on 11.9.2017, DBS filed this Section 7 Petition against Ruchi Soya before this Bench. 6. Apart from the Facility Agreements entered into, Ruchi executed a Deed of Hypothecation dated 9.8.2012 on the whole of movable and fixed assets of Ruchi Soya Industries Ltd including its movable plant and machinery, machinery spares, tools and accessories, furniture and fixtures and other movables at Village Mithi Rohar, Taluka-Gandhidham, District- Kutch, Kandla, Gujarat. Ruchi also executed Indenture of Mortgage dated 30.8.2012 between ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orum has already been constituted to have a resolution with the Creditors of this Debtor, this Bank should not have proceeded under IBC; (6) for the default has not been determined in compliance of requirements under the Bankers Books of Evidence Act, such statement of account shall not be taken into consideration to admit this petition. 8. Looking at the objections raised by the Corporate Debtor, the points for determination are as follows: i. Whether there is any defect in the Power of Attorney as stated by the Debtor or not? ii. 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? iii. Whether this case has to be postponed or not on the ground that on reference (in the matter of Union Bank of India v. Era Infra Engineering Ltd.) 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? iv. Whether Reserve Bank of India directives pursuant to the Banking Regulations (Amendment) Act, 2017 have any bearing on adj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re Private Limited v. ICICI Bank Limited 144 SCL 319 (NCLT - New Delhi) has held that one - Power of Attorney holder, being distinct from the word authorised person repeatedly used in Form-1 representing financial creditor, is not competent to file an application on behalf of a financial creditor or operational creditor or corporate applicant ; two - that power of attorney given prior to enactment of I B Code is not a valid Power of Attorney to file an application under section 7 of the Code. In support of the above proposition propounded by the debtor counsel, as to point one is concerned, he submits that Pankaj Jain being a power of attorney holder in this case, he cannot be an authorised person as contemplated in signature Box set out at the foot of Form-1 designed for filing application u/s 7 of the Code. As to point two is concerned, since the power of attorney was executed in favour of Pankaj Jain on 26.6.2013 by DBS Bank, which is prior to enactment of I B Code 2016, the debtor counsel says that it is obvious that this petition shall be dismissed on this ground alone. To ascertain as to whether any merit in the points raised by the debtor counsel, we must look ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver in or as to which the Bank is, or may hereafter be, the mortgagee or lien holder or pledgee. 3. To use, exercise, and enforce, all powers, rights and remedies in respect of any lands, goods, chattels, merchandise, stocks, funds, moneys, shares, securities, real and personal estate or property of any kind whatsoever or any account, matter or thing whatsoever, which the Bank can, or could use, exercise, or enforce. 4. To commence and carry on, or concur any actions suits or other proceedings of every description, at law or in equity including bankruptcy or insolvency or liquidation or winding up or otherwise and to accept service of any writ of summons or other legal process and to enter an appearance in, defend, represent the Bank in or oppose any actions, suits or other proceedings as aforesaid, which may be commenced or prosecuted against the Bank, or wherein the Bank may be in any way concerned or interested, and to execute and deliver any bonds or undertakings necessary or desirable in any such legal or judicial proceedings, or to procure the same to be executed and delivered by any person, persons, firm, corporation or company and to indemnify such person, persons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion for and on behalf of the Bank in relation to business of the Bank relating to the Branch and also on behalf of the Overseas Branches of the Bank relating to the business of the Bank that was originated from India. And the Bank hereby agrees to ratify and confirm ail and whatsoever the Officer shall lawfully do or cause to be done by virtue of this Power of Attorney. IN WITNESS WHEREOF, the Bank has caused its Common Seal to be hereunto affixed this 26th day of June Two Thousand and Thirteen (2013). The Common Seal of ) DBS BANK LTD. ) was hereunto affixed ) in the presence of:- ) - Director Piyush Gupta (Mr) - Secretary Goh Peng Fond (Mr) On perusal of this Power of Attorney, on face, it appears that it is not a Power of Attorney given by some Director on the authority given by the Company. It is ex-facie apparent on record that this Power of Attorney has been directly given by the Bank to the power of attorney holder Mr Pankaj Jain through the Director of the Bank, namely Piyush Gupta and the Secretary of the Bank, namely Goh Peng Fond as mandated under Companies Act of Singapore. Now as against this Power of At ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall be deemed to be free of any limitation under the company s constitution. (2) For the purposes of subsection (1), a person dealing with a company - (a) is not bound to enquire as to any imitation on the powers of the directors to bind the company or authorize others to do so; and (b) is presumed to have acted in good faith unless the contrary is proved. (3) The references in subsection (1) or (2) to limitations on the directors powers under the company s constitution include limitations deriving - (a) from a resolution of the company or of any class of shareholders; or (b) from any agreement between the members of the company or of any class of shareholders. (4) This section shall not affect any right of a member of the company to bring proceedings to restrain the doing of an action that is beyond the powers of the directors; but no such proceedings shall lie in respect of an act to be done in fulfillment of a legal obligation arising from a previous act of the company. (5) This section shall not affect any liability incurred by the directors, or any other person, by reason of the directors exceeding their powers. (6) This section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the appropriate official seal of the corporation shall bind the corporation and have the same effect as if it were under its common seal. (6) The authority of any such agent or attorney shall as between the corporation and any person dealing with him continue during the period, if any, mentioned in the instrument conferring the authority, or if no period is therein mentioned then until notice of the revocation or determination of his authority has been given to the person dealing with him. Official seal for use abroad (7) A corporation whose objects require or comprise the transaction of business outside Singapore may, if authorised by its constitution, have for use in any place outside Singapore an official seal, which shall be a facsimile of the common seal of the corporation with the addition on its face of the name of the place where it is to be used and the person affixing any such official seal shall, in writing under his hand, certify on the instrument to which it is affixed the date on which and the place at which it is affixed. Since this Power of Attorney was executed in Singapore, naturally the execution of this Power of Attorney is governed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power of authority given to somebody in accordance with the law of the respective country as valid. Of course, foreign law is not binding on us where there is an express prohibition to do so under Indian law, for the phrase Authorised Person being inclusive, person given Power of Attorney will fall within the phrase of Authorised Person . 12. This Power of Attorney has been affixed with the Company Seal to prove that this Power of Attorney is the authority given by the company. In normal parlance, whenever any company seal is affixed on any document said to have been issued by e company, it has to be presumed that the document has been conferred with the authority of the company. As to Power of Attorneys are concerned, usually a dispute will arise only when management itself or some of the persons in the management or the persons giving authority themselves raise a dispute saying that such and such power of attorney has not been given by the company. Here in this case, it is a large institution spread all over the world and making this institution run by conferring power upon some attorney holders to act on behalf of the Bank. It is not the case of the Debtor that this Power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Insolvency Bankruptcy Code which has come into existence in the year 2016, i.e. subsequent to the execution of the Power of Attorney, on the contra, other Ld. Member opined that since it has been mentioned in the POA that the Legal Manager is empowered to initiate legal proceedings under the NCLT which automatically includes the proceedings before Adjudicating Authority under IBC. That Bench has further held that if at all Petitions are to be filed on the basis of specific Power of Attorney basing on the Board Resolution, it will defeat the very purpose of Insolvency Bankruptcy Code which is for the speedy resolution of Insolvency cases. 17. On which, when it went for reference to be decided by a third Member situated at Guwahati, the Ld. Member has decided since a complete new regime in respect of Insolvency/Bankruptcy has been put in place under the Code of 2016, the procedure laid under the Code of 2016 can t be equated with the proceedings for winding up under the Companies Act, 1956, therefore the power given in the POA executed in 2004 cannot be stretched to embrace the power to initiate Corporate Insolvency Resolution proceedings under Section 7 of the Code, 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of attorney given by them. On which, Hon ble Supreme Court has categorically held that when it has been said that when act has to be performed is personal in character that particular act should be done by the party as stated in the Criminal Procedure Code, under Criminal Procedure Code, if the personal attendance of the accused is sought to be dispensed with, such dispensation has to be sought under Section 205 of Criminal Procedure Code notwithstanding the person holding any power of attorney from the accused. Here two things are visible, one - it is in relation to a criminal case governed by Criminal Procedure Code wherein it has been categorically mentioned under Section 205 of Criminal Procedure Code that the personal attendance of the accused can be dispensed with only in accordance with Section 205 of the Code. Two - when such specific provision is mentioned in respect to attendance, more especially in a criminal case, nobody can insist upon appearance of the accused through a power of attorney without taking the grant of the respective Criminal Court under Section 205 of the code. In view of the same, it could be understood if a special provision is there in the Code itself ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y holder to file this case before this Bench. Since it is a globally spread bank so whenever any power of attorney is given, it will be given with full powers to deal with any eventuality that keeps coming in the course of its business. If we see the text of Attorney deed already taken out and placed above, this Pankaj Jain has been given full authority to sue and to be sued on behalf of the Bank and also to take action under Bankruptcy, Insolvency, Liquidation and Winding up all-inclusive power so that special authority need not be given to meet eventualities that arise over a period of time. Because legal remedy against default of repayment or inability to pay as the case may be, it will be at some places in the form of bankruptcy, at some places in the form insolvency, and at some places in the form of liquidation, in force all over the world, therefore, to meet this eventuality, exhaustive powers are given to power of attorney. This power of authority is given to him to deal with all situations that happen in India. It is not that in every company, the board has to pass resolution to meet the requirements of the company. If the company size is big, then the board will decide wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f attorney on behalf of the company. In India as well, since there is a presumption that when any document comes from a company with a seal of it, it has to be premised that the said document was executed on behalf of the company, so the person getting authority through that document is entitled to take actions accordingly. If it is a small company, normally board resolutions will be passed as and when required as per Articles of Association, but the same cannot be the situation if the size of the company is massive and spread across the world. What all we say is non filing of a resolution by the board cannot become a spring board to throw away a case otherwise fit to be admitted. 25. It goes without saying the ultimate object of law is to render justice, here the grievance is this petitioner lent money to the corporate Debtor and the said Corporate Debtor defaulted in paying the said loan. When such default occurs, the aggrieved will seek justice for repayment of its money. When Companies Act, 1956 was in vogue, the creditor shall not invoke winding up jurisdiction unless and until the company is unable to repay loan to the creditor; and that proceeding of winding up shall be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he attorney holder has been given authority to proceed in the cases of insolvency and bankruptcy as well. It is not something new remedy that has come under Insolvency Bankruptcy Code, it was there before IBC, may be one remedy before one forum another remedy before another forum, re- organisation or re-structuring of the company was there under SICA, relief of liquidation was there under winding up in companies Act, 1956. 27. Today this Corporate Debtor having admitted the existence of debt and occurrence of default, defeating justice on the premise board resolution is not passed is not only legally untenable but also unfair on the part of the Corporate Debtor. The basic propositions for rendering justice are doctrine of truthfulness and reasonableness. The truth is the Corporate Debtor availed loan and then defaulted repayment. Reasonableness is entitlement to the creditor to realise the debt from the Corporate Debtor through the remedies available to him. May be, it is for recovery of money or for initiating insolvency process. The destiny in both the remedies is realisation only. In second case, company may be wound up. When doors are open for ease of doing business by all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... argument of the corporate debtor in that case, because first line of the para starts with learned counsel for the corporate debtor submitted that and ends with therefore according to the Corporate Debtor , the procedural pre- requisites under IBC must be strictly construed. 30. Another two points decided in Palogix are, one - about seven days time given for curing defects, where Honourable NCLAT held that holidays shall be excluded in computing seven days, two- IBC is a complete code therefore Power of Attorney cannot override the specific provisions of the statute, therefore power of Attorney holder is not competent to file application on behalf of the creditor or corporate applicant. In the same breadth, Honourable NCLAT held that if Manager is competent to sanction loan, then it can t be said that manger cannot file case. By seeing this conclusion by NCLAT, it appears that filing of Board Resolution in every case is not sine qua non, the observation made is since CIRP process is slightly serious, if it is filed through power of attorney, there is a possibility of fraudulently filing cases, and also a possibility to initiate cases under section 65 of the Code. 31. As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re is holding saying that if winding up petition is pending before High Court, NCLT cannot proceed under Insolvency Bankruptcy Code. Moreover, when proceedings are initiated before two competent forums, unless one of the proceedings is stayed, both of them can parallelly run without any impediment. The only point that comes into question is, if any of these two, adjudicate the matter, then the other competent forum shall not proceed any further for it is hit by the doctrine of res-judicata. Even if we go by old Companies Act, the proceedings before other courts will not be suspended before liquidator or provisional liquidator is appointed, henceforth, we don t find any merit in this argument of the corporate debtor. The Corporate Debtor relied upon Karan Singh v. Bhagawan Singh (1996) 7 SCC 559, Mst. Rafiquennessa v. Lal Bahadur Chetri (AIR 1964 SC 1511 para 13),and Shri Ram Saran Sharma v. Bank of India [1990] 69 Comp. Cas. 544 (Punj. Har.) para 7, 8 9 to say that when appeal is filed against a decree, the court of appeal shall have all the powers and shall perform the same duties as are conferred and imposed on the court of original jurisdiction thereby the appeal is a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. iv. whether Reserve Bank of India directives pursuant to the Banking Regulations (Amendment) Act, 2017 has any bearing on adjudication of this case or not? 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. v. 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? The corporate debtor relied upon Avinash Kumar Chauhan v. Vijay Krishna Mishra [2009] 2 SCC 532, Badal Mittal v. Lakdawala Developers Pvt. Ltd. (Bom HC Arb. Petition No. 221 of 2013, para 5) and SMS Tea Estates (P.) Ltd. v. Chandmari Tea Company (P.) Ltd. (2011 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present in Insolvency and Bankruptcy Code, two - it has been settled by Hon ble NCLAT as well as Hon ble Supreme Court in Innoventive Industries Ltd. v. ICICI Bank Ltd. 320/143 SCL 625 (SC) and this Bench in between Indian Bank Ltd. v. Varun Resources Ltd. [C.P. No. 247/I BP/NCLT/MAH/2017, dated 14-6-2017] (NCLT Mumbai dated 14.06.2017) that RBI Circulars will not have any binding nature on the proceedings under IBC. vii. Whether the Statement of Account filed by DBS is in compliance with Part V Serial No. 7 of Form No. 1 or not? The argument of the Corporate Debtor Counsel is that the copies of entries in Bankers Book are not in accordance with the Bankers Books of Evidence Act therefore, the statement submitted is not admissible, hence the Petition cannot be maintained. To which, the Petitioner has subsequently filed Bank statements for the year 2011-2012 (Exhibit A ) in its additional Affidavit. Whereas, the Corporate Debtor Counsel raised objection to take this material on record for it has come subsequent to filing of the Petition. Since the Corporate Debtor case is, these entries in Bankers Book are not in accordance with the Bankers Book Evidence Act, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has not been asked in column no.7 therefore, it is not mandatory to file certified copies as mentioned under Bankers Books Evidence Act. The only point to be seen is as to whether the statement of account filed before this Bench is falling within the ambit of definition to Bankers Books, this point has already been decided. Moreover, examination and proof are always dependent upon the stands of the parties. In this case, the Corporate Debtor has nowhere refuted either the existence of debt or occurrence of default. In normal parlance, for an illustrative purpose, if you take a promissory note case, if execution is admitted and payment of consideration is denied, then burden shifts upon the defendant to prove no consideration plea, if he fails to prove that plea, suit will be decreed basing on admission of execution of promissory note. The extent of adducing proof keeps changing depending on the stand of the parties. If consideration plea is not proved, it does not mean the burden shifts upon the plaintiff to prove payment of consideration. Basic propositions of law and logic will rot change as and when new enactment comes into operation. If anything new has come that is not pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the corporate debtor any of its assets or any legal right or beneficial interest therein; (c) any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act); (d) the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. (II) That the supply of essential goods or services to the corporate debtor, if continuing, shall not be terminated or suspended or interrupted during moratorium period. (III) That the provisions of sub-section (1) of Section 14 shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. (IV) That the order of moratorium shall have effect from 15.12.2017 till the completion of the corporate insolvency resolution process or until this Bench approves the resolution plan under sub-section (1) of section 31 or passes an order for liquidation of corporate debtor under section 33, as the case may be. (V ..... X X X X Extracts X X X X X X X X Extracts X X X X
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