TMI Blog2018 (2) TMI 1837X X X X Extracts X X X X X X X X Extracts X X X X ..... earned Senior Advocate M R Bhatt with Learned Advocate Mr. Arjun Sheth. For the respondent Learned Senior Advocate U K Chaudhary with Learned PCS Mr. Pratik Tripathi. ORPER 1. Petitioners No. I to 3, through their authorised person 1st petitioner, filed this petition under section 7 of The Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as the Code ) read with Rule 4 of The Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (hereinafter referred to as the Rules ) with a request to commence Corporate Insolvency Resolution Process in respect of Medilux Laboratories Pvt. Ltd. 2. It is the case of the petitioners that they have advanced money on payment of interest to the respondent/corporate debtor. According to the petitioners, the respondent corporate debtor acknowledged the amount of ₹ 18,18,793/-, ₹ 95,20,444/- and ₹ 1,97,256/- is due to petitioners No. I, 2 3 respectively in the annual report for the financial year 2015-16 filed by the respondent with the Registrar of Companies. 3. It is also stated that first petitioner is power of attorney holder of petitioners No. 2 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 36. In so far as, the present case is concerned, the 'Financial Creditor' Bank has pleaded that by Board's Resolutions dated 30th May, 2002 and 30th October, 2009, the Bank authorised its officers to do needful in the legal proceedings by and against the Bank. If general authorisation is made by any 'Financial Creditor' or 'Operational Creditor' or 'Corporate Applicant' in favour of its officers to do needful in legal proceedings by and against the 'Financial Creditor' / 'Operational Creditor'/'Corporate Applicant', mere use of word 'Power of Attorney' while delegating such power will not take away the authority of such officer and 'for all purposes it is to be treated as an 'authorisation' by the 'Financial Creditor'/'Operational Creditor'/'Corporate Applicant' in favour of its officer, which can be delegated even by designation. In such case, officer delegated with power can claim to be the 'Authorised Representative' for the purpose of filing any application under Section 7 or Section 9 or Section 10 001 B Code'. 38. This apart, if a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thorised person and, therefore, petition is not properly instituted. But a perusal of page 5 of Form I clearly show that, first petitioner Sunil Parmanand Kewalramani is shown as individual financial creditors' nominee and power of attorney holder. In view of the nomination letters coupled with power of attorneys, it cannot be said that, there is no proper authorisation to the first petitioner to institute this petition on behalf of petitioners No. 2 and 3 also. 10. Learned Sr. Counsel for the respondent contended that the claim is also barred by limitation. The annual report of 2015-16 of the respondent acknowledge the amounts that were due to the petitioners and, therefore, the question of limitation does not arise. In view of the same, it is not necessary to debate on the aspect whether the limitation is applicable to proceeding under the Code or not and for the debt involved. 11. Another objection raised by the respondent is that the amount shown as due to the petitioners is not financial debt and it is money deposited by the petitioners who are shareholders of the respondent company in the form of quasi-capital without any written or oral agreeme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e not parties to the sanction letter. The terms and conditions mentioned in the sanction letter may be binding on the respondent corporate debtor but not on its lenders. Simply because the respondent wrote a letter dated 09.09.2017 the Branch Manager, Saraswat Bank seeking repayment of the amount and his request is pending with the bank, it cannot be said that there is no default in repayment of financial debt. 17. In view of the fact that petitioners issued demand notice dated 28.08.2017 calling upon the respondent to pay amount due to them and as the respondent failed to pay the debt, it can only be said that there is default in repayment of debt which amounts are treated as financial debts. The reason given by the respondent company for non-payment of amounts to the petitioners inspite of notice dated 28.08.2017 do not absolve the respondent from the factum of occurrence of default. 18. Sr. Counsel appearing for the respondent referred to the decision in Innoventive Industries Ltd.vs. ICICI Bank Ltd. reported in [2017]84 taxman.com 320 (SC) and contended that a debt may not be due if it is not payable under law or in In the case on hand petitioners hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, this petition insofar the first petitioner is concerned it cannot be admitted but coming to the case of petitioners No. 2 and 3 they have got every right to trigger corporate insolvency resolution process because financial debt is due to them and there is occurrence of default. Moreover, the pendency of Company Petition No. 73 of 2017 before NCLT, Ahmedabad filed by petitioners against the respondent company is not a ground to take a different view in this matter. The points that would come up for consideration in CP 73 of 2017 is altogether different qua the rights of shareholders whereas in this petition the Adjudicating Authority has to see whether there is existence of financial debt and occurrence of default. Since these two things are satisfied, this petition in respect of petitioners No. 2 and 3 deserves to be admitted and it is accordingly admitted. 22. The Adjudicating Authority hereby appoint Mr. Umesh Harjivandas Ved, 304, Shoppers Plaza-5, Govt. Servants Co- operative Society, Opp. Municipal Market, C.G. Road, Navrangpura, Ahmedabad 380 009 and having Registration No. IBB1/1PA-002/1P-N00136/2017-18/10376 as Interim Resolution Professional u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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