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TMI Blog2018 (7) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... a, Gurugram-122001, Haryana and Branch office at Large Corporate Branch, E-Block, Harsha Bhawan, First Floor, Connaught Place, New Delhi-110001. It was incorporated on 19.02.1943 and was assigned Identification Number AAACO0191M. 2. Mr. Rakesh Chander Sharma, Assistant General Manager, has been authorized by the power of attorney dated 04.09.2003 (Annexure P/ 1) to submit and sign the petition. 3. The Corporate Debtor-M/s. Sonear Industries Limited is a company registered under the provisions of the Companies Act, 1956 and was incorporated on 14.05.2004. The identification number of the Corporate Debtor is U20211DL2004PLC126381 and its registered office is situated at 20, North West Avenue, Punjabi Bagh, New Delhi-110026. Its authorised share capital is Rs. 35,00,00,000/- and the paid up share capital is Rs. 15,09,51,290/- as per the master data available on the website of Ministry of Corporate Affairs. 4. The Financial Creditor has proposed the name of Shri Kanwal Goyal, J-1, 2nd Floor, Kailash Colony, Greater Kailash-I, New Delhi-110048, email id - [email protected]. He has registration No. 1BBI/IPA-002/IP-N00007/2016-17/10007. He has also made declaration and sen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Financial Assets and Enforcement of Security Interest Act, 2002 for amount totalling Rs. 172,92,62,505/- as on 06.12.2016 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 P-25). 8. The details of the security held by, or created for the benefit of 'financial creditor'- Oriental Bank of Commerce along with the certificate of registration of charge issued by the Registrar of Companies have been placed on record [Annexure P-5 (colly)]. 9. The Corporate Debtor also executed the deed of hypothecation dated 07.11.2015 in favour of the Financial Creditor. A copy of the deed of hypothecation has been placed on record (Annexure P-8). 10. A record of default is also available with the Credit Information Bureau (India) Limited (CIBIL) as per its commercial credit information report of the Corporate Debtor based on report dated 24.10.2017 (Annexure P/6). Likewise, Entries in Bankers Book in accordance with the Bankers Books Evidence Act, 1891 has also been placed on record which relate to all Bank accounts (Annexure P/7). 11. There are then the balance and security confirmation letter dated 02.11.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Power of Attorney cannot empower and authorize Mr. R.C. Sharma to present a petition under law that came in existence in 2016. Clause l(p), inter alia, relates to insolvency proceedings under the erstwhile Provincial Insolvency Act, 1920 which now stands repealed. Further, the aforesaid clause does not empower and authorize Mr. R.C. Sharma to institute, pursue and prosecute proceedings in the nature of winding up or those under the Companies Act. Thus, the present application is without valid authority and therefore, no order for initiating CIR Process can be passed against the Corporate Debtor. 17. A rejoinder to the reply has been filed by the Financial Creditor reiterating the submissions made in the application and controverting the assertions in the reply. 18. Mr. Vipin Jai, learned counsel for the petitioner has argued that all requirements of Section 7 for the initiation of Corporate Insolvency Resolution Process by a Financial Creditor stand fulfilled. In that regard, he has submitted that the application as prescribed by Rule 4 (1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 read with Section 7 (2) of IBC has been filed. He has fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 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; (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." 23. It is made clear that the provisions of moratorium shall not apply to transactions which might be notified by the Central Government. Additionally, the supply of essential goods or services to the Corporate Debtor as may be specified is not to be terminated or suspended or interrupted during the moratorium period. These would include supply of water, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accept its offer. However, nothing could be achieved. We reserved the order and even during this interregnum period no fruitful result has come forward. Secondly the object of the 'Code' to resolve the insolvency issue could not be achieved merely by refusing to admit the petition. The resolution as against liquidation would only be possible if the Corporate Insolvency Resolution Process is triggered and efforts in that direction are made. Therefore, admission of the petition cannot be successfully resisted on such a flimsy ground. Therefore, we have no hesitation to reject the arguments raised on behalf of the Corporate Debtor. 27. We do not find any substance in the submission of the counsel for the Corporate Debtor that Mr. R.C. Sharma, Assistant General Manager could not have presented this petition as he has been authorized in pursuance of Power of Attorney executed in 2003 whereas the Code has been enforced in 2016. The general Power of Attorney is a widely worded document and it has various clauses empowering the attorney to file any proceedings before Courts or Tribunal. Therefore, there is no substance in this argument as well and the same is rejected. 28. The office is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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