TMI Blog2019 (2) TMI 1621X X X X Extracts X X X X X X X X Extracts X X X X ..... ocess (CIRP) against the Corporate Debtor. Since this is a Petition of Financial Creditor , therefore, the Insolvency Process shall commence as prescribed under Section 7 of I BC, 2016 - the Moratorium as prescribed under Section 14 of the Code 2016 shall come into operation - Application admitted. - C.P.(IB)-556/(MB)/2018 - - - Dated:- 14-2-2019 - Shri M.K. Shrawat, Member (Judicial) For The Petitioner (s) : Mr. Akshay Patil, Advocate And Ms. Priyanka Zaveri, Advocate For The Respondent (s) : Mr. Rohit Gupta And Mr. Jayesh Nishar, i/b. J. Nishar And Co. ORDER 1. A Petition is filed in Form No.1 on 02.04.2018 by Mr. Satish Sadashiv Rane in the capacity of Financial Creditor , u/s.7 of The Insolvency Bankruptcy Code, 2016 to initiate Corporate Insolvency Resolution Process against M/s. Shah Group Builders Limited, Navi Mumbai 400 705, Corporate Debtor for claiming a Financial Debt of ₹3,57,82,820/- (Principal) + Interest ₹2,05,28,489/- + Unpaid amount accrued on Home Loan account ₹ 46,00,000/-, Total amount of default (Principal + Interest + Accrued Amount = 6,09,11,309 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1,60,223.29 1,84,14,000.00 18th March, 2015 to 20th March, 2018 1099 7% 38,81,065.81 Grand Total 42,01,809.65 MONTHLY INSTALMENTS FOR LOAN REPAYMENT AND INTEREST DUE 1-January-2015 to 20-March-2018** Balance Time period for which interest is calculated Total no. of days Interest rate Interest 1,32,820.00 31st January, 2015 to 9th March, 2015 38 12% 1,659.34 2,66,820.00 10th March, 2015 to 14th May, 2015 66 12% 5,789.63 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Debtor is a company incorporated and registered under the Companies Act, 1956 on 27.06.2005 as per the records of the Ministry of Corporate Affairs. The Company is a public limited Company limited by shares and is in the business of construction of high end residential projects. It is alleged that the Directors of the Corporate Debtor induced the Financial Creditor to initiate deposits with the Corporate Debtor on the basis of an assured return scheme. 2.2. The Corporate Debtor had allegedly accepted the deposits from the Financial Creditor from the year 2012 onwards till April 2014, totalling to an amount of ₹1,40,00,000/-. The Deposit was made on the assurance of Interest @ 24% p.a. on the basis of the assured return scheme. The Financial Creditor had made the deposits on various dates. 2.3. Subsequently it is informed that in the year 2014 the Corporate Debtor had convinced the Petitioner/ Financial Creditor to invest in a flat based on an investment scheme. The Corporate Debtor and the Financial Creditor executed a Memorandum of Understanding in June 2014 ( Investment MoU ). According to this MoU:- - the contribution toward ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, revised Deposit and amounts drawn down from the Bank along with applicable interest accrued on all such amounts. It is submitted that the Corporate Debtor should pay the Financial Creditor an interest @ 12% per annum toward EMI s paid by the Financial Creditor which were supposed to be paid by the Corporate Debtor but which it defaulted. 2.7. According to the Petitioner/ Creditor, admittedly, the Corporate Debtor had made an Interest payment of ₹2,55,000/- towards the home loan account and had not paid any further amounts during the year and in April, 2016 made an additional payment of ₹5,00,000/- to the Financial Creditor against such revised deposit, without discharging the debt entirely. It is alleged that since May, 2016 till date, no payments were made to the Financial Creditor. 2.8. The Petitioner/ Creditor further submitted that the Corporate Debtor had acknowledged its obligation for these amounts by email dated 27.12.2016. Rather time and again given verbal assurances that the outstanding dues will be cleared soon. 2.9. The Petitioner/ Creditor also submitted that as per the details of the transaction stated in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... solvency Bankruptcy Code, 2016 before the NCLT cannot be filed by a Power of Attorney holder. Respondent submitted that it is not a case that it is a corporate entity and power of attorney can be treated as an authorization letter or a resolution. It is the case where the individual has approached this Hon'ble Tribunal, therefore, it is only the individual, who can file the application and not the power of attorney holder. Therefore, the application deserves to be rejected. Even otherwise, the judgment has categorically considered the issue and come to a conclusion that there has to be specific authorization to file an application. 3.1. The Respondent claimed that the Power of Attorney nowhere delegate or authorize to file Application to initiate Corporate Insolvency Resolution Process and argued that the authorization should provide that the application can be filed for initiating Corporate Insolvency Resolution Process under the Insolvency and Bankruptcy code, 2016. Corporate Debtor vehemently argued that there is no reference of Corporate Insolvency Resolution Process or IBC in the Power of Attorney. Also submitted that during the course of hearing decided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f action been accrued. Since the impugned Petition was filed only on 02.04.2018, the application deserves to be rejected. 3.5. It is also submitted that the Principal amount of ₹1.85 Crores towards the loan drawn by Satish Rane for Shah Group Builder the claim comprises of three transactions dated 27.11.2014, 28.01.2015 and 18.03.2015. The Respondent pleaded that irrespective of the point of limitation the transaction is that the Applicant had taken a loan from the Bank to purchase a house from the Corporate Debtor. The Respondent submitted that this transaction is not a loan transaction but merely a facilitator transaction. Unless the amount of ₹1,84,14,000/- is paid by the Corporate Debtor to the bank, it cannot be recovered by the Applicant from the Corporate Debtor. Admittedly, this amount is, till date, not paid back to the bank and therefore the question of Applicant demanding this money from the Corporate Debtor will not arise. This claim is premature. 3.6. The Third claim is a claim for ₹13.68 lakhs approximately towards the EMI, which the Applicant claims that he had paid and he is entitled to reimbursement. This transact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Power of Attorney being authorised vide this General Power of Attorney. In one of the clauses the Attorney holder is authorised to receive or recover money of the executor by taking legal action, refer clause (6) of the Power of Attorney. Through this General Power of Attorney, it appears that substantive authorisation in respect of the properties of the Petitioner has been granted in favour of the Attorney holder. The Attorney holder authorised to appear before the Tax Authorities as well. The Attorney holder is empowered to do all lawful acts for recovery of the money of the Petitioner. Because of the vide powers given and because he is responsible to handle the finances of the Petitioner, who is an NRI, in India, therefore, the Attorney holder has thought it proper to move this Petition to protect the finances of the Petitioner. 4.1. The decision on which the Respondent Debtor has placed reliance viz. Palogix Infrastructure Private Limited (supra) is totally different on facts as well as on law. In that case the issue was that whether in a case of a Corporate Body whether a Petition under Insolvency can be filed by any person representing that Corporate Body ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facie it is evident that the Petitioner/ Financial Creditor had made Fixed Deposits with the Financial Debtor and also entered into an MoU in June, 2014 with the Financial Debtor. According to this MoU, the Corporate Debtor had assured the Financial Creditor that all amounts drawn down from the bank would be repaid to the Bank by the Corporate Debtor. It was also agreed that the Corporate Debtor would pay the Financial Creditor an interest of 7% per annum simple interest on all amounts availed by the Corporate Debtor from the Bank. The Corporate Debtor has not denied the existence of a MoU with the Financial Creditor. 4.5. It is pleaded by the Petitioner/ Creditor that the Corporate Debtor had defaulted to make repayments of the loan to the Bank in accordance with the terms of the loan as specified under the Investment MoU, therefore, the Petitioner was compelled to pay the instalments to the Bank. 4.6. In the light of the above discussion and on due perusal of the documents annexed, the Debt is to be qualified as Financial Debt as defined under section 5(8) of Insolvency Bankruptcy Code, 2016. As a result, the Financial Creditor has filed this ..... X X X X Extracts X X X X X X X X Extracts X X X X
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