TMI Blog2017 (12) TMI 1766X X X X Extracts X X X X X X X X Extracts X X X X ..... exed to Rules cannot invalidate the power of attorney. Power of Attorney defines principal and agent relationship. When an agent is chosen to deal with certain subjects, it need not be seen in which form that subject is, the point to be seen whether subject matter authority is given to him or not - this power of attorney is binding on the creditor bank, therefore, this power of attorney shall be held as valid authorization to proceed against the debtor. Whether pending of appeal over the order dismissing winding up petition against the Corporate Debtor, will have any bearing over adjudication of this case or not? - HELD THAT:- If the proposition of law does not stop the decree upon which appeal is filed, it is far fetching to say that IBC proceedings shall not be initiated looking at an appeal pending over some other proceedings filed against this Corporate Debtor. For the sake of clarity, we reiterate that winding up petition was dismissed against this very corporate debtor. Therefore, this argument of the corporate Debtor counsel saying this case shall not proceed because of pendency of an appeal over the dismissal order over the winding up petition does not hold any merit. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the corporate debtor will not have any bearing on the cases initiated under IBC, therefore, this plea is hereby dismissed without having any further consideration on this point. Whether the Statement of Account filed by DBS is in compliance with Part V Serial No. 7 of Form No. 1 or not? - HELD THAT:- The inconsistency is the benchmark to invoke non-obstante clause of this Code upon other enactments. I must also say that when there is a categoric admission falling under Indian Evidence Act, that admission need not be put to proof as envisaged under Section 58 of Indian Evidence Act. Here, when a specific case has been put to the Corporate Debtor saying that the Corporate Debtor borrowed money and failed to repay the same, this Corporate Debtor has nowhere denied about existence of debt and occurrence of default. The Petitioner herein has furnished all the material to prove the existence of debt and occurrence of default. Petition admitted - moratorium declared. - CP Nos. 1371 & 1372/ISBP/NCLT/MAH/2017 - - - Dated:- 15-12-2017 - B.S.V. PRAKASH KUMAR, JUDICIAL MEMBER AND V. Nallasenapathy, TECHNICAL MEMBER For the Petitioner : Atul Rajyadakshya, Sr. Counsel, Gaurav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s overdue and payable by the Corporate Debtor. For this money was not being paid on 17.1.2017, the Corporate Debtor informed that the Joint Lender's Forum (JLF) was formed to ascertain the viability options to revive the company. The correspondence in between the bank and the Corporate Debtor dated 6.2.2017, 15.2.2017 and the returns (Form ECB 2) filed with RBI admits that the aforesaid amount is overdue and payable by the Corporate Debtor to the Petitioner herein and the same has been showing in the Annual Report of the Corporate Debtor for the Financial Year 2016-17. 4. This Creditor has also granted working capital facilities of ₹ 355.50 crores by two facilities for ₹ 90 crores and ₹ 265.50 crores on the same terms and conditions, including the master credit terms in the restatement of facilities and terms by two letters of the bank dated 27.1.2016, which the Respondent has admitted that the amount outstanding as on 30.11.2015 was over ₹ 131 crores by executing several security documents like Hypothecation of Stocks, Book Debts and Personal Guarantees etc. The bank account statement of Corporate Debtor proves that it was in continuous default since ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate Debtor, email dated 25.5.2017 from the Corporate Debtor to the Petitioner, letter dated 1.6.2017 from the Corporate Debtor to the petitioner Bank, Agreement of Hypothecation of stocks, Book Debts, Supplementary Hypothecation Agreement of stock/Book Debts dated 7.6.2013, Unattested Memorandum of Hypothecation dated 31.7.2014, Supplemental Memorandum to unattested Memorandum of Hypothecation dated 28.1.2016, Personal Guarantee of Dinesh Sahara dated 4.3.2014, 7.6.2013, 14.5.2014, 27.10.2016. 7. To prove that debt has been withdrawn by this Corporate Debtor from the facility of External Commercial Borrowing of USD15,895,000 and the working facility of ₹ 355,50,00,000 on various dates as mentioned in the Annexures to the Petition. 8. This Company petition has been filed by one Pallav Sangal as the person authorised to act on behalf of the Financial Creditor relying upon two power of Attorneys dated 27.6.2017 and 11.7.2017 issued by this Creditor Bank. Likewise, this Petitioner has even filed written communication given by the proposed Interim Resolution professional namely, Shailendra Ajmera (Ernst Young LLP, New Delhi) agreeing to accept for appointment of him as Int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xistence of debt and occurrence of default. 12. Now the points for consideration are as follows: a. Whether the Power of Attorney given to Pallav Sangal is defective or not? b. Whether Statement of Accounts have been properly certified as envisaged under Bankers' Books of Evidence Act, 1891? c. Whether the certificate of Registration of Charge over the assets of the Debtor Company is defective or not? d. Whether Facility Agreement has been adequately stamped or not, if not stamped adequately, whether such defect would deprive this petitioner from filing this Company petition or not? e. Whether an Appeal over an order dismissing winding up CP 570/2016 filed by IDFC Bank Ltd against this Corporate Debtor will have any bearing on this Adjudicating Authority passing an order under Section 7 of the Code or not? f. Whether the Reserve Bank of India directives pursuant to the Banking Regulations (Amendment) Act, 2017 will have any bearing on this application or not? g. Whether Insolvency Bankruptcy Code is applicable to the Agreement for ECB facility said to have been governed by English Law or not? a. Whether the Power of Attorney given to Pallav Sangal i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in India is given to her until the same has not been revoked, she has been entitled to authorise the representatives of bank to initiate proceedings before Court of Law. In furtherance of it only, she authorised Pallav Sangal to initiate the proceedings against this Corporate Debtor under Insolvency Bankruptcy Code on 27.6.2017. The Petitioner Counsel says that the procedure for giving power of attorney in Standard Chartered Bank is different from other banks, because this Standard Chartered Bank is registered under Queen's Royal Charter, there Power of Attorney will be signed by two sealing officers who are authorised by the Committee/Court of Standard Chartered Bank, London, in the case of Zarin Daruwala also, the sealing officers have authorised Zarin Daruwala to continue as Power of Attorney as stated under the Charter aforementioned. Moreover, to obviate this problem, sealing officers have directly given the power of attorney to Pallav Sangal on 11.7.2017 to proceed against the Corporate Debtor to take action under Insolvency Bankruptcy Code in respect to External Commercial Borrowing Account. The Corporate Debtor Counsel has raised frivolous argument saying that B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e paid and under what Article how much deficit is there, in view of the same, this Petition can't be dismissed on that ground. Moreover, for Article 5(b) of Maharashtra Stamp Act, 1958 mandates for payment of ₹ 100 on the Agreement, the same being already paid on that Agreement itself, the Corporate Debtor cannot raise this objection vaguely. Moreover, the liability to pay stamp duty being upon the Corporate Debtor as per the terms of Agreement, it is the Corporate Debtor to pay the stamp duty not by the Petitioner. For the Corporate Debtor having failed to prove that under such and such Article so and so amount is payable and for this Agreement is already stamped with ₹ 100 as contemplated under Article 5(b) of Maharashtra Stamp Act, 1958, we have not found any merit in the objection raised by the Corporate Debtor. e. Whether an Appeal over an order dismissing winding up CP 570/2016 filed by IDFC Bank Ltd against this Corporate Debtor will have any bearing on this Adjudicating Authority passing an order under Section 7 of the Code or not? This point being slated to deal with in the Petition moved by DBS, the same may be read as part of the order in this CP a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) and of USD 26,427,702.87 towards External Commercial Borrowing - II (ECB-II) outstanding as on 31.7.2017 as against USD 20 million ECB - I facility availed by it on the Facility Agreement entered into on 19.2.2011 and as against USD 30 million ECB-II facility availed by it on another Facility Agreement entered into on 15.2.2012. For having availed loan facilities as aforesaid and thereafter defaulted in repaying the same, DBS Bank has filed this Petition to initiate Corporate Insolvency Resolution process against Ruchi Soya. Material facts from the Financial Creditor side: 2. It is a Bank established by Government of Singapore in the year 1968 incorporated in Singapore having its branches and offices in China, Dubai, Hong Kong, India, Indonesia, Japan, South Korea Malaysia, Myanmar, Philippines, Taiwan, Thailand, Vietnam, United Kingdom and United States. Its Branch in India is headquartered in Mumbai with 10 branches across our country. When Ruchi Soya situated in India approached DBS Bank for the loan facilities aforementioned, this Bank, having considered the request of Ruchi Soya, entered into first Facility Agreement with Ruchi Soya on 19.2.2011 through its Branch si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch is annexed as Exhibit - AA with relevant portion in page no.761 of the Company Petition. 5. For no payment came from Ruchi Soya, despite the letter addressed by DBS on 25.8.2016, DBS again addressed a letter on 23.9.2016 to Ruchi informing that it has failed to pay the instalment payable on 6.9.2016 therefore, Ruchi breached the provisions of ECB-II; and failure to honour the payment obligations under ECB-II constitutes an Event of Default under Clause 22.5 of ECB-I Agreement giving right to DBS to accelerate payment obligations under ECB-I Agreement. In view of the same, DBS called upon Ruchi Soya to pay an amount of USD 25,000,000 outstanding under ECB-I and USD 9.6 million outstanding under ECB-II along with applicable interest under the respective Facility Agreements. To the letter dated 23.9.2016 sent by DBS on 8.11.2016, Ruchi Soya replied that it was undergoing financial difficulties for various reasons beyond its control, therefore, JLF has been constituted in July, 2016 with a Corrective Action Plan, and DBS having attended to various JLF meetings, Ruchi requested DBS to bear with us till the outcome of such solution bydenying the breach of its financial obligation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd default against Ruchi, we have ascertained that DBS Bank has filed all material papers reflecting Ruchi Soya availing ECB-I and ECB-II loan facilities for an amount of USD 50 million and thereafter, defaulted in repaying the said loan amount as agreed in the Facility Agreements. 7. As against this case, the Corporate Debtor Counsel has not raised any issue in respect to availing loan from DBS Bank and default in repayment of loan by Ruchi Soya, but on the contrary, the Counsel of the corporate debtor raised issues saying that (1) Power of Attorney filed along with this petition is defective; (2) this insolvency petition is hit by being an appeal pending over the order dismissing winding-up petition filed against this debtor, (3) for Reserve Bank of India being authorised to resolve specific stressed assets lying with Banks by initiating CIRP under IBC, RBI issued circular on 5th May 2017 and a corrigendum to it on 13th June 2017, basing on which, an Internal Advisory Committee was constituted to focus on large stressed accounts, which has examined 500 accounts, out of which 12 accounts were recommended to be taken up to NCLT under IBC, as to remaining 488 Accounts, RBI direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer all the issues raised by the debtor counsel. It is not the case of the Debtor that the creditor failed to prove existence of debt and default in respect to the borrowings the debtor made from the creditor. But its case is that though debt and occurrence of default are proved, for the defects above mentioned not being cured, this petition shall be dismissed. 10. Since proof of existence of debt and occurrence of default are being two subject matter constituents to admit the case u/s 7 of the Code, both being already held as proved, normally burden shifts upon the opposing party to prove that it is otherwise hit by some other grounds. Now this duty is cast upon Ruchi Soya for it has made assertion that the aforesaid defects are material to dismiss this case, in the absence of such disproval from Ruchi side, the Petitioner having already proved that debt and default are in existence as mentioned in Section 6 and 7 of Insolvency Bankruptcy Code, 2016, this petition ought to be admitted. Therefore, let us see as to whether the Corporate Debtor has discharged his duty in proving that these defects are in existence and they are material for dismissal of this case. (i) Whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r called the Bank ). WHEREAS: (1) The Bank carries on business in the Republic of Singapore and has established branches in India and may establish additional branches in India (each a Branch ). (2) The following are Branch staff: Name Passport No. PANKAJ JAIN L1705946 (Hereinafter called the Officer ) (3) The Bank is desirous of conferring on the Officer the powers and authorities hereinafter contained. NOW THIS DEED WITNESSETH that the Bank hereby appoints the Officer, each of them acting singly, to be the true and lawful attorney of the Bank to act for the Bank at any Branch and on behalf of and for and in the name of the Bank or in his own name to do and perform all or any of the following acts and things in India, that is to say:- 1. To ask, demand, sue for,at law or in equity, recover, receive, enter upon, seize and take possession of, all lands, goods, chattels, stocks, funds, moneys, securities, real and personal estate and property of any description, which the Banks holds, is entitled to or interested in, whether as owner, or under or by virtue of any bon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge all debts, demands, actions, causes of actions, suits, judicial proceedings of every kind whatsoever, liabilities, claims, counterclaims, and set-offs, which may be or become due to the Branch, or which the Branch may have against any person or persons, firm, corporation or company or which may be claimed from or set up against the Branch, on such terms as the Officer shall deem fit 8. To prove all debts and claims in bankruptcy, insolvency, liquidation or winding up proceedings, to receive dividends, vote for and represent the Bank at all meetings of creditors and to act as proxy for the Bank and to execute under hand or seal any deeds of assignment or scheme of arrangement or composition. 9. To act as trustee, liquidator or otherwise in relation to the affairs of any debtor or insolvent person or entity and to take all steps in relation to the winding up and arrangement of the affairs of any debtor or insolvent person or entity, 10. To appear before any court or office or other authority and to do and execute any act, deed or thing necessary for perfecting this Power of Attorney and any writing or instrument executed pursuant thereto. 11. To execute sign seal and d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transfer. (2) Any such lack of capacity or power may be asserted or relied upon only in - (a) proceedings against the company by any member of the company or, where the company has issued debentures secured by a floating charge over all or any of the company's property, by the holder of any of those debentures or the trustee for the holders of those debentures to restrain the doing of any act or acts or the conveyance or transfer of any property to or by the company; (b) any proceedings by the company or by any member of the company against the present or former officers of the company; or (c) any application by the Minister to wind up the company. (3) If the unauthorised act, conveyance or transfer sought to be restrained in any proceedings under subsection (2)(a) is being or is to be performed or made pursuant to any contract to which the company is a party, the Court may, if all the parties to the contract are parties to the proceedings and if the Court considers it to be just and equitable, set aside and restrain the performance of the contract and may allow to the company or to the other parties to the contract, as the case requires, compensation for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally bound by the contract or other transaction and entitled to the benefit thereof. Form of contract (3) Contracts on behalf of a corporation may be made as follows: (a) a contract which if made between private persons would by law be required to be in writing under seal may be made on behalf of the corporation in writing under the common seal of the corporation; (b) a contract which if made between private persons would by law be required to be in writing signed by the parties to be charged therewith may be made on behalf of the corporation in writing signed by any person acting under its authority, express or implied; (c) a contract which if made between private persons would by law be valid although made by parol only (and not reduced into writing) may be made by parol on behalf of the corporation by any person acting under its authority, express or implied, and any contract so made shall be effectual in law and shall bind the corporation and its successors and all other parties thereto and may be varied or discharged in the manner in which it is authorized to be made. Authentication of documents (4) A document or proceeding requiring authentication by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs of the company, two, if at all it is to be used in abroad, official seal is to be affixed on the Deed. In the light of the statutory provisions, now if we see the Power of Attorney and Companies Act of Singapore side by side, the authors of the document have followed word to word as stated in the Companies Act. It has been said that it has been executed in Singapore, it has been said that it has been executed by the Bank itself,which is the company. 11. May be this procedure is slightly different from Indian Companies Act but their law having said that one Director and Secretary can execute Deeds representing the company, whatever document executed with such an authority has to be taken as valid. The persons entering into a Deed with the company are very much protected by the doctrine of good faith inbuilt in the Act itself. The only exception under Companies Act, Singapore is, it should not be a related party transaction as stated under Section 25C and it can be questioned by the members of the same company. When no doubt is in existence that tomorrow somebody come on behalf of the company and say this institution of suit is invalid, how can this Corporate Debtor raise an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14. The debtor counsel says that for Hon'ble NCLAT has already decided that Insolvency Bankruptcy Code is a complete code by itself, the provisions of Power of Attorney Act, 1882 cannot override the specific provision of a statute which requires that a particular act should be done by a person in the manner as prescribed thereunder and that the clause authorised person reflected in entry 5 and 6 of Form I is distinct from Power of Attorney holder therefore, as to this case, for there being no authority authorising any person to file this case soon after Insolvency Bankruptcy Code has come into existence, this Petition shall be dismissed at threshold. 15. Before going into the ratio decided in the case supra, it is imperative to look into the background facts in the case supra so as to find out on what premise such ratio has been decided by the Hon'ble NCLAT. 16. It appears in the case supra, ICICI Bank filed Section 7 petition against Palogix before NCLT, Kolkata Bench by an officer of ICICI Bank saying that he was authorised to file Section 7 petition through Power of Attorney issued to him on the Boad Resolutions dated 3.5.2002 and 30.10.2009 entitling this o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Directors of the company stating that he was given power of attorney to give authorisation to proceed in the said matter. When it has been examined as to whether that CFO has been given power to give such authorisation to the Director, the Court has arrived to a conclusion that no proof has been placed showing that CFO was given power of attorney by the company to further delegate such power to the person filed that case, in view of the same, it has been held the authorisation given to the Director is shorn of authority henceforth, that point was decided against authorised person. 20. On Hon'ble Supreme Court having noticed that the person given authorisation himself has no power to authorise somebody else to proceed, it has held that the person claiming authority is not competent to defend the company Kingston. If a converse situation is presumed, then it is evident that, as per this ratio, if the power of attorney has come from a competent source, then that power of attorney confers power upon the holder to sue or to be sued on behalf of the company. 21. The Corporate Debtor in the case supra further relied upon T C Mathai v. Pr. District Session Judge [1999] 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when any specific provision is there in any enactment, no matter it is a civil or criminal case, such specific provision in the enactment relating to power of attorney will no doubt have overriding effect over Section 2 of the Power of Attorney Act. In I B Code, no such provision is in existence to deviate from general proposition in existence since long, whenever any standard is set by application of various enactments over a period of time, all of sudden, if some new law comes into existence, it does not mean it can read down any and every standard procedure flanked by law. If at all anybody venture into such interpretation, one - it has to be proved that a specific new provision has come into law invalidating old provision of law, two - old law must be so inconsistent with new law that unless that provision is read down it is difficult to give effect to new law. Moreover, by bringing in this power of attorney issue, though debt and default are in existence, by this new issue of invalidating POA, it indeed bounces back on I BC itself causing hardship to the creditors in initiating proceedings under I BC. 23. Now if we come to the facts of the present case, it is evident that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to proceed against the corporate debtor under I BC. Indeed, the powers in Attorney Deed are sweeping in nature. When power is given to meet any eventuality, it can't be said that since new enactment has come, again authority has to be given to proceed under a particular enactment. If you see any power of attorney, the phraseology will be to deal with variety of subjects, in mentioning those subjects, it will never be found that jurisdiction is given to proceed under so and so enactments only. 24. As to authority is concerned, if you see our own Companies Act, 2013, under Section 21 of Companies Act, deed can be signed by any key managerial personnel authorised by the Board on its behalf. The practise that happens in providing this authority is to execute that document with the seal of the company. Here, in this case, by reading the power of attorney, it appears that this power to authorise agent has directly come from the company with the seal of the company. It is deemed that company is bound by the said document. At the time when loan is given, the debtor has no requirement to see the Board, bank in its usual course to enter into Facility Agreements. Of course, the debt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iate insolvency proceedings against the company. Under new regime, insolvency case should not be pursued through the prism of doctrine of bonafide and inability. No doubt it is hard to see to initiate insolvency proceedings simply on existence of debt and default, because until yesterday, we were under the belief that winding up petition was not meant for recovery of money. But howsoever hard it seemingly appears, it is the law we all have to follow. We have no role to tilt either side, perception of the statute shall be the perception of this Tribunal. 26. The ground reality is, debt and default are not in dispute, that means the creditor proved its case; law cannot become an impediment to achieve justice basing on this reality. In the section of law or in the Rules, it has nowhere been mentioned that power of attorney should not file a case on behalf of the company, it only says that financial creditor can file. The terminology of authorised person is generic in nature, whereas, power of attorney is specific in nature. The phrase authorised person is a caption in general, encompassing the caption of power of attorney , because power of attorney is also nothing but authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of attorney holder will not become an authorised person. Power of attorney is more stringent document fixing responsibility upon the principal as well as the agent not to disown that they are not bound by the power of attorney. As to authorised-person is concerned, there is no fixation of any responsibility between principal and agent. Banking business is veins and arteries to the corporate business, if banking is made easy and realisation is made tough, it is nothing but choking the veins and arteries of corporate business. Now India has become one of the business hubs in the world, when that being the situation, wholesome approach shall be given to effectuate the purpose and object of law. We cannot pierce out something from the whole and propound a legal proposition, which goes against the main aim of the enactment. We do not say that petitions need to be admitted ignoring the procedural aspect that is required to be followed. If it is understood in the way it is to be understood, it will be clear that valid power of attorney is nothing but authorisation to proceed against the Debtor. 29. Moreover, if we read PALOGIX order closely, it has not been held anywhere that Power of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all litigation work and other business, his authority cannot be weighed down on the ground he is not an authorised person. The ground reality is, all bank cases filing happens through power of Attorney only, moreover it being a bank internationally spread, and the authority to Pankaj having directly come from the company, it cannot be seen as distinct from the specific authority envisaged in Palogix. 32. The petitioner relied upon citation in between Timblo Irmaos Ltd., Margo v. Jorge Anibal Matos Sequeira [1977] 3 SCC 474, to say that power of attorney has to be read as a whole keeping it in mind the purpose of it. 33. Therefore, considering the size of the company, the order passed by the Hon'ble NCLAT is distinguishable from the facts of this case, for there being no objection from the bank's side and there being no material from the debtor side to disprove that this authorization given in favour of Pankaj Jain is not valid one, we hereby hold that this power of attorney is binding on the creditor bank, therefore, this power of attorney shall be held as valid authorization to proceed against the debtor. ii. Whether pending of appeal over the order dismissing wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yed unless stay over the execution proceedings is ordered by the Appellate authority. If the proposition of law does not stop the decree upon which appeal is filed, it is far fetching to say that IBC proceedings shall not be initiated looking at an appeal pending over some other proceedings filed against this Corporate Debtor. For the sake of clarity, we reiterate that winding up petition was dismissed against this very corporate debtor. Therefore, this argument of the corporate Debtor counsel saying this case shall not proceed because of pendency of an appeal over the dismissal order over the winding up petition does not hold any merit. iii. Whether this case has to be postponed or not on the ground that on reference (in the matter of Union Bank of India vs. Era Infra Engineering Ltd.) to the larger Bench on the issue of as to that whether proceeding under IBC can be triggered while winding up petition pending before the respective High Courts against the same Corporate Debtor ? This case will not be covered in any of the categories mentioned in the case referred because no winding up petition is pending against the corporate debtor herein. The corporate debtor counsel re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to the admissibility of the documents), therefore, the objection on account of non-payment of stamp duty is held as devoid of merit. The corporate debtor counsel has nowhere mentioned how much stamp duty is to be paid, how much is not paid by the Petitioner, his hypothetical argument will not be relevant to decide any case because duty is cast upon the person raising objection. Moreover, facility agreement alone is not the document to prove this case, there is surplus material to prove that debt and default are in existence whereby, this argument is not sufficient enough to deny the claim of Petitioner herein, henceforth, the argument of the corporate debtor is hereby dismissed. vi. Whether formation of Joint Lender Forum will have any bearing over filing of this case or not? It has already been held by the Hon'ble NCLAT Innoventive Industries Ltd. v. ICICI Bank Ltd. [2017] 82 taxmann.com 190/142 SCL 11 (NCL - AT) that JLF proceedings pending against the corporate debtor will not have any bearing on the cases initiated under IBC, therefore, this plea is hereby dismissed without having any further consideration on this point. The corporate debtor counsel relied up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Bank, it will fall within the definition of Bankers' Book. The Petitioner filed the document falling within the definition of Bankers' Book under the Bankers' Books Evidence Act. In Entry No.7, what is asked to attach is the copy of the Bankers' Book, it has not been asked to file a certified copy as certified under Bankers Book Evidence Act therefore, it can't be said that unless a certified copy is filed, it should not be looked into. For the argument of the Corporate Debtor is, no other law is applicable when Insolvency and Bankruptcy Code is applicable, it is obvious that Bankers' Books Evidence Act is also to be construed as not applicable. But we do not go to such an extent to say that all canons of law are null and void as against Insolvency and Bankruptcy Code, 2016. It is being said by Hon'ble Supreme Court umpteen times, that whenever any overriding effect is given in any statute, it has to be consciously applied so as not to dilute the operation of other laws save and except to the extent of inconsistency mentioned in the enactment constituted with non obstante clause. Since the statement of account being a document falling within the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iding effect is to be given, it will take two precautions into consideration, one, they will repeal the prior enactment to the extent that is covered in the subsequent enactment or if it feels that prior enactment must also remain in existence then it will do so by differentiating the fields of operation. Whenever any conflict or overlapping comes, then the provision with overriding effect will prevail over. In a situation like that also, many a times, Hon'ble Supreme Court harmonised the situations so as not to dilute the vigour of the enactments to the extent possible. Though IBC is definitely a new enactment, the subject dealt with by this enactment is not new to us, because in the past it was spread in 2-3 enactments. In view of the same, we are of the view that inconsistency is the benchmark to invoke non-obstante clause of this Code upon other enactments. I must also say that when there is a categoric admission falling under Indian Evidence Act, that admission need not be put to proof as envisaged under Section 58 of Indian Evidence Act. Here, when a specific case has been put to the Corporate Debtor saying that the Corporate Debtor borrowed money and failed to repay the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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