9911796707
TMI Blog2017 (7) TMI 1352X X X X Extracts X X X X X X X X Extracts X X X X ..... authorization letter dated 9/ 10/2015 annexed as Annexure l . 3. The Corporate Debtor Binani Cement Ltd., Identification No. is U26941WB1996PLC076612. The registration number of the proposed interim resolution professional is Mr. Vijaykumar V. lyer, Registration No.IBBI/IPAOO 1/1P-00526/2016-17/ 1370 of Deloitte Touche Tohmatsu India LLP Indiabulls Finance Centre, Tower 3, 27th Floor, Senapati Bapat Marg, Elphinstone Road (West), Mumbai - 400 013, email viyer@DEL01'1TE.com. 4. The applicant has stated that he has granted certain term loan and working capital facilities to the corporate debtor from time to time which were restructured on the terms and conditions set out under the Master Restructuring Agreement dated 13/ 12/2014 entered into, inter alia, the Corporate Debtor, BOB and certain other lenders (collectively JLF Lenders) as amended by a supplemental term loan agreement dated 6/2/2015 and a supplemental working capital agreement dated 6/2/2015 together with the original MRA and Supplemental TL agreement. Copies of the original MRA, Supplemental TL agreement and the Supplemental WC agreement have been annexed with the petition as Annexure 3, Annexure 4 and Annexure 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of entries maintained by BOB in accordance with Banker's Books of Evidence Act, 1891 Annexure 21, copies of account overdue letters and the financial statements between 11/4/2016 and 13/5/2016 Annexure 22, copies of financial statement of corporate debtor for the financial year ending 31/3/2016, an affidavit in support of the application to prove the fact of extending loan to the corporate debtor under different accounts and due amount on the corporate debtor and default committed by the corporate debtor on different dates in different account. 10. The petitioner has also proposed the name of Mr. Vijaykumar V. lyer to act as interim resolution professional whose details are mentioned above. The petition has been verified by Mr. ram autar Pal, Assistant General Manager, Bank of Baroda. The petitioner has stated that he has been authorized on the basis of power of attorney given to him. The petition has filed power of attorney of Bank of Baroda in favour of Mr. Jayeshkumar Vasantray Mehta. It is also mentioned in the said power of attorney that "I am authorized to do and perform by virtue of the said Power of Attorney dated 16/2/2015 in the same manner and as effectually as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ming into effect of the Code and cannot form the basis for filing proceedings under the Code. 16. The corporate debtor has raised objection that Power of Attorney dated 9/ 10/2015 is based on Power of Attorney dated 16/2/2015 executed by the applicant in favour of Mr. Jayeshkumar Vasantray Mehta. However, copy of the Power of Attorney dated 16/2/2015 has not been disclosed. It is not known whether the said Mr. Jayeshkumar Vasantray Mehta had any authority to initiate proceedings under the Code or to sub-delegate the power received by him. He has also stated that at the time of execution of said two Powers of Attorney dated 16/2/2015 and 9/10/2015, the Code was not in existence. The applicant could not have envisaged promulgation of the Code of 2016 in the year 2015 and, therefore, could not have conferred any authority on any person to initiate proceedings under the Code. 17. The corporate debtor relied on the orders passed in CP No.37 / 2017 [ICICI Bank Ltd. vs. Palogix Infrastructure Pvt. Ltd.] wherein Hon 'ble Court held that a specific authorization to initiate corporate insolvency process is needed. 18. The corporate debtor has also stated that Mr. Jayeshkumar Vasantray ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orney dated 16/2/2015 by financial creditor. It is pertinent to mention that BOB initially executed power of attorney in favour of Mr. Jayeshkumar Vasantray Mehta and through the said power of attorney he was authorized to appoints one or more attorney to act on behalf of BOB and on the basis of this authorization Mr. Jayeshkumar Vasantray Mehta has executed the power of attorney dated 9/10/2015. It also appears from the power of attorney that BOB has authorized him to sign on behalf of BOB in all matters incidental to or arising out of bankruptcy or insolvency or any composition or arrangements with the creditors or any person or persons indebted or under liability to the Bank or claimed by the Bank to be or in the winding up of any company so indebted or under liability or claimed to be so. 22. Therefore, this fact of the case is different than the case decided by this Bench in ICICI Bank Ltd. vs. Palogix Infrastructure Pvt. Ltd. In this case under general power of attorney specific power is given to the power of attorney holder to execute one or more power of attorney for signing and presenting the petition for and on behalf of the BOB. Further, the authority has also given pow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the adjudicating authority or National Company Law Tribunal. It is made clear that the notice was issued on the corporate debtor and affidavit of service was filed by the financial creditor that notice was served on the corporate debtor through Speed Post on 16/6/2017. It is pertinent to mention herein that the petition was filed in NCLT on 16/6/2017 and after that petitioner served copy of the petition on the corporate debtor and filed affidavit of service along with receipt of Postal Department and Track Report, which shows that the copy of the petition was served on the corporate debtor on 16/6/2017 through Speed Post. 26. Further, the order was passed on 5/7/2017, the Respondent appeared through Ld. Counsel and made a request for adjournment and the case was adjourned to 10/7/2017. Again on 10/7 / 2017 Ld. Counsel for the financial creditor was present and argued the matter. Ld. Counsel for the corporate debtor requested for time to file affidavit. The corporate debtor was granted time to file the affidavit by the next date. The matter was heard on 12/7 /2017 and reserved for order. 27. In this case the corporate debtor was present since the first hearing of the case and he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority; 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 Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 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. 30. The supply of essential goods or services to the corporate debtor as may be specified shall not be terminated or suspended or interrupted during moratorium period. 31. The provisions of sub-section (1) shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. 32. The order of moratorium shall have effect from the date of such order till the completion of the corporate insolvency resolution process. Provided that where at any time during the corporate insolvency resolution process period, if the Adjudicating Authority approves the resolut ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
