TMI Blog2018 (6) TMI 1262X X X X Extracts X X X X X X X X Extracts X X X X ..... nstalment 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 argumen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd its registered office is situated at Flat NI-17, Jaswant Apartment, Jamia Nagar, Okhla Village, Delhi-110025. Its authorised share capital is ₹ 23,00,00,000.00/- (Twenty Three Crore) and the paid up share capital is ₹ 22,21,53,000.00/-(Twenty Two Crore Twenty One Lacs Fifty Three Thousand) as per the master data available on the website of Ministry of Corporate Affairs. 4. The Financial Creditor has proposed the name of Shri Satyendra Prasad Khorania, D-233, Kardhani Scheme, Opposite D-Block Park, Govindpura, Kalwar Road, Jaipur - 302012 (Rajasthan), email id - skhorania@live.com. He has registration No. IBBI/IPA-02/IP-N00002/2016-17/10002. He has also made declaration and sent a written communication dated 18-08-2017. According to the declaration, Mr. Satyendra Prasad Khorania has no disciplinary proceedings pending against him with the Insolvency and Bankruptcy Board of India or ICSI Insolvency Professional Agency. Accordingly, he satisfies the requirement of Section 7 (3) (b) of the Code. 5. In the application, the Financial Creditor has given the details of financial debt granted to the Corporate Debtor with the dates of disbursement. A perusal of part IV o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enty Three Paisa). A copy of the statement of account and a sheet of calculation of interest have been placed on record (Annexures-8 18). 7. As per the averments of the Financial Creditor , the account of the Corporate Debtor was declared as Non-Performing Asset (NPA) on 25-05-2016 in its books. In view of the repeated defaults on the part of the Corporate Debtor to comply with the repayment of the principal and interest dues, the Financial Creditor was constrained to issue the recall notice dated 19-12-2016 under Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 for amount totalling ₹ 804650066.57 (Rupees Eighty Crores forty six lacs fifty thousand and sixty six rupees and fifty seven paisa only) plus unapplied interest and misc. expenses due w.e.f. 30-07-2016 but inspite of the notice they failed to clear the unpaid debt/liability. A copy of the recall notice has been placed on record (Annexure-3). 8. It is also the pleaded case of the Financial Creditor that thereafter it had filed Application under Section 19(1) of the Recovery of Debts and Bankruptcy Act, 1993 against the Corporate Debtor, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eet of the debtor company not attached. (iii) The application under Section 7 of the Code, signed and filed by a General Power of Attorney Holder without specific authorization is not maintainable. Reliance in this regard has been placed on a judgment rendered by Hon ble the Supreme Court in a case of State Bank of Travancore v. Kingston Computers Fyi. Ltd. (2011) 11 SCC 524. Further Reliance has also been placed on a judgment rendered by Hon ble the Supreme Court in a case of T.C. Mathai v. District Sessions Judge, Thiruvananthapuram [1999] 3 SCC 614 where Hon ble the Supreme Court held that Section 2 of the Power of Attorney Act, 1882 cannot override the specific provision of a statute which requires that a particular act should be done by a party-in-person. (iv) The Principal amounts shown in application are different from the amount given in account statements. (v) Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden. In this regard reliance has been placed on a judgment rendered by Privy Council in a case of Nazir Ahmad v. King Emperor AIR 193 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orania, D-233, Kardhani Scheme, Opposite D-Block Park, Govindpura, Kalwar Road, Jaipur -302012 (Rajasthan), email id - skhorania@live.com, Registration No. IBBI/IPA-02/IP-N00002/2016-17/10002 is appointed as an Interim Resolution Professional. 16. In pursuance of Section 13(2) of the Code, we direct that Interim Insolvency Resolution Professional shall immediately make public announcement with regard to admission of this application under Section 7 of the Code. We also declare moratorium in terms of Section 14 of the Code. A necessary consequence of the moratorium flows from the provisions of Section 14 (1)(a), (b), (c) (d) and thus the following prohibitions are imposed which must be followed by all and sundry: (a) the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; (b) transferring, encumbering, alienating or disposing of by 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional Office of the Bank of Baroda. It clearly states that Mr. Baru Singh Chauhan has been conferred the powers to institute, defend, prosecute, conduct, sign, verify, pursue and present company petition, suits, appeals, revision, applications, before appropriate Forum/Court including the concerned National Company Law Tribunal and to give statement (oral/writing) and/or on oath and/or otherwise which may be required to be done by the Company and to take all such further steps as may be necessary and required for the purposes. It is pertinent to notice that a Board Circular Resolution dated 14-11-2017 (which was filed vide diary No. 1615 dated 23-03-2018) was issued by Secretary to Board Company Secretary wherein in Agenda Item No. L-l recommended by Shri N. Venugopal, Head-Legal RTI, and sponsored by Shri P.S. Jayakumar, Managing Director CEO it was resolved that all the Executives of the Bank in the category of Chief Managers in Grade-IV and above are authorized to exercise the signing power to sign and execute necessary papers/documents for initiating/defending any legal and other action on behalf of the Bank and for the purpose: to make, submit, file applications, petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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. 21. Ms. Naresh Kumar Sejvani has placed reliance on the observations made by this Bench in para 14 of the judgment rendered in the case of Bank of India v. Tirupati Infraprojects (P.) Ltd. C.P. No. IB 104(PB)/2017, dated 3-7-2017 . This Bench has observed that if there was any discrepancy in calculation then it does not materially affect the admission of the such application. We observed that the Adjudicating Authority is not entrusted with any function to determine the amount of default and once the default has occurred involving rupees one lac or more in terms of Section 4 of IBC then one of the requirements for initiating the insolvency process stand satisfied. The objection of this nature concerning discrepancy in calculation of the amount would surely be maintainable before the Committee of Creditors. It was further observed that once default in terms of Rule 3(12) of IBC is established and all other requirements are fulfilled. The Insolvency Resolution Process must be triggered. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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