TMI Blog2018 (8) TMI 1988X X X X Extracts X X X X X X X X Extracts X X X X ..... And Hon'ble Ms. Manorama Kumari, Member (Judicial) Ms. Natasha Shah, Advocate for the Petitioner. Mr. Kunal Vaishnav, Advocate for the Respondent. ORDER Mr. Harihar Prakash Chaturvedi, The present 1B Petition is filed in this court by the Bank of India, being a financial creditor against the Respondent Corporate Debtor Company, i.e. M/S. Diamond Power Infrastructure Limited having its registered address at Phase-Il, village- Vadavala, Ta. Savli, Vadodara, Gujarat. 2. The present petition is filed under section 7 of the I.B. Code, 2016 stating that the Corporate Debtor Company has defaulted of payment of debt to the tune of paisa (Rupees Four- Hundred Eighty-Five Crores Forty-Two Lakhs Ninety-Five Thousand Five-Hundred-Seven and Twenty-One Paisa Only). 3. The default of debts is reported on 09.01.2015. 4. It is the case of the Petitioner Bank of India that it disbursed a loan amounting of ₹ 661.88 Crores (Rupees Six-Hundred Sixty-One Crores and Eighty- Eight Lakhs Only) to the Corporate Debtor Company in several intervals between the period from 2008 to 30th Mardh,2015 and a copy of the sanction of loan for above stated loans are anne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e present petition is filed on 26.03.2018. Hence it is filed well within the limitation. 10. The proposed Resolution Professional has also expressed his willingness to accept the assignment as IRP of the proposed corporate insolvency resolution process in respect of M/S. Diamond Power Infrastructure Limited if an order of admission of the present 1B petition is passed. The proposed IRP has further made a declaration to this affect that there is no disciplinary action pending against him with the IBBI Board or the ICAI. Hence, he expressed his acceptance for proposed assignment. 11. Thus, on the basis of aforesaid reason, the applicant financial creditor has prayed for the initiation of CIRP in respect of the Corporate Debtor Company, as the company has committed default in making payment of its outstanding debt which is more than of Rupees One Lakh, comes to around ₹ 485 Crores and above. 12. The applicant bank, by filing the present petition has drawn our attention to an internal circular of date 02.12.2015 of the Reserve Bank of India; whereby, a it has directed concerned bank(s) being a Financial Creditor to declare such account as a Non-Performing Assets (NPA). I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Financial Creditors or Corporate Applicant and as per the Section 7 or Section 10, initiation of CIRP which is required to be filed by the Financial Creditors itself. The Hon'ble NCLAT went further to observe equally that the IB Code and Adjudicating Authority Rules recognize that Financial Creditor being a juristic person can act through an authorized representative and it is mandatory for the Financial Creditor to submit name and address of its authorised person appointed on its behalf. 17. As we find that, the present application is signed by the Assistant General Manager of the applicant bank with official seal of the Bank of India, therefore, it can be safely presumed that he possesses proper authority for filing the present application. The Hon'ble NCLAT was pleased to examine such issue and clarified the same by observing in Para-31 to 41 of the above referred judgement. Thus, settled the legal position in this respect, which, in our view is squarely applicable to the facts of the present case. The relevant portions of the above referred judgement for the sake of convenience are being reproduced here in below. 31. As per Section 7 of the I B Code' an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tiated by a person fraudulently or with malicious intention for personal act on the part of an individual, can a Power of Attomey Holder be punished? This is one of the reasons we have noticed to hold that a 'Power of Attorney holder' cannot file any application under Section 7 or Section 9 or Section TO of 'I B Code'. 36. In so far as, the present case is concemed, 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 'authorization' by the 'Financial Creditor'/'OperationaI Creditor'/'Corporat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its no objection for initiating such process and stated that the appointment of a Resolution Professional would be in the interest of the Creditors. Hence, there remains no impediment for initiation of CIRP. 19. For the afore-stated reasons, the present Company IB Petition No. 137/7/NCLT/AHM/2018 is hereby admitted. 20. consequently, a moratorium is declared under Section- 13 and 14 of the 1B Code with following directions. 14. (a) the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgement, decree or order in any court of law, tribunal, arbitration panel or other authority; (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 Securitisation 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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