TMI Blog2018 (7) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. No substance in the submission of 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. - C.P. (IB) NO. 597(PB)/2017 - - - Dated:- 16-5-2018 - MR. M. M. KUMAR AND MR. S. K. MOHAPATRA, JJ. For The Petitioner : Shri Vipil Jai, Advocate with Mr. H. S. Philip, Chief Manager For The Respondent : Mr. Ashutosh Shandilya, Advocate JUDGMENT M. M. KUMAR, PRESIDENT The Financial Creditor -Oriental Bank of Commerce has filed the instant application under Section 7 of the Insolvency and Bankruptcy Code, 2016 (for brevity the Code ) with a prayer to trigger the Corporate Insolvency Resolution Process in the matter of M/s Sonear Industries Limited. It is appropriate to mention that in the instant application Guarantor of the Corporate Debtor h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal sanction/enhancement was carried out from time to time. The loan facilities were restructured on 24.12.2014 for ₹ 168.73 and finally on 27.06.2016 the loan facilities were reviewed/renewed. (AS PER ANNEXURE P-3, (COLLY)). The aforesaid details would show that under various heads loan facility of ₹ 13.2 crores was sanctioned on 10.10.2005 and thereafter additional sanction /enhancement was carried out from time to time. The loan facilities were restructured on 24.12.2014 for ₹ 168.73 and finally on 27.06.2016 the loan facilities were reviewed/renewed. The details with regard to each loan facility has been placed on record (Annexure P/3). 6. In column 2 of part IV the amount claimed to be in default and the date on which the default occurred have been stated in clear terms. According to the averments made by the Financial Creditor-Oriental Bank of Commerce the aforesaid facilities availed by the Corporate Debtor are overdue and total amount in default as on 30.11.2017 is ₹ 1,93,86,75,698.99/- (Rupees One Ninety-Three Crores, Eighty Six Lakhs, Seventy Five Thousand, Six Hundred and Ninety Eight and Ninety Nine paise only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Corporate Debtor filed reply to the instant application by disputing the claim of the Financial Creditor as also the validity of the classification and declaration of credit facilities as NPA. It further asserted that the Financial Creditor was under an obligation to sanction financial restructuring plan in accordance with the business and commercial circumstances of the respondents. The restructuring package that was sanctioned to the respondents vide letter dated 24.12.2014 was predicated on such terms and conditions which were impossible to perform. 14. The Corporate Debtor further asserted that vide email(s)/letter(s) dated 29.07.2017, 23.08.2017 07.09.2017, the respondents requested the petitioner to permit operation of the accounts under a tagging/cut back arrangement but the aforesaid reasonable and liable request of the respondents was not conceded to by the Financial Creditor. Further assertion of the Corporate Debtor is that the Financial Creditor illegally invoked the recovery machinery of SARFAESI Act, 2002 after recalling the credit facilities which resulted into business of the respondents coming to a halt, accumulation of bad debts and loss of credibility in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rescribed. 7 (3) 7 (4) 7 (5) Where the Adjudicating Authority is satisfied that- (a) a default has occurred and the application under sub-section (2) is complete, and there is no disciplinary proceedings pending against the proposed resolution professional, it may, by order, admit such application; or (b) .. 20. A conjoint reading of the aforesaid provision would show that form and manner of the application has to be the one as prescribed. It is evident from the record that the application has been filed on the proforma prescribed under Rule 4 (2) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 read with Section 7 of IBC. We are satisfied that a default has occurred and the application under sub section 2 of Section 7 is complete; and no disciplinary proceedings are pending against the proposed Interim Resolution Professional. Thus, the application warrant admission. 21. As a sequel to the above discussion, this petition is admitted and Mr. Kanwal Goyal, J-l, 2nd Floor, Kailash Colony, Greater Kailash-I, New Delhi-110048, email id kanwal.goyal@aaainsolvency.com, Registration No. IBBI/IPA-002/IP-N00007/2016-17 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ors, promoters or any other person associated with the Management of the Corporate Debtor are under legal obligation under Section 19 of the Code to extend every assistance and cooperation to the Interim Resolution Professional as may be required by him in managing the affairs of the Corporate Debtor. In case there is any violation by the ex-management or its ex-directors the Interim Resolution Professional would be at liberty to make appropriate application to this Tribunal with a prayer for passing an appropriate order. The Interim Resolution Professional shall be under duty to protect and preserve the value of the property of the Corporate Debtor as a part of its obligation imposed by Section 20 of the Code and perform all his functions strictly in accordance with the provisions of the Code. 25. 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 CIBIL account 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 docu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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