TMI Blog2020 (12) TMI 953X X X X Extracts X X X X X X X X Extracts X X X X ..... including the Special Power of Attorney given by one of the Promotors Ms. Neelu Gupta, and did not confine to only non-disclosure of facts beyond the statutory requirements. Therefore, the learned Counsel for the Appellant cannot rely upon the Judgment of this Tribunal passed in M/S. UNIGREEN GLOBAL PRIVATE LIMITED VERSUS PUNJAB NATIONAL BANK, CORPORATION BANK, VIJAYA BANK AND ORIENTAL BANK OF COMMERCE [ 2018 (1) TMI 505 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] . Further, this Tribunal in the matter of GAJA TRUSTEE COMPANY PRIVATE LIMITED AND ORS. VERSUS HALDIA COKE AND CHEMICALS PRIVATE LIMITED [ 2018 (8) TMI 1270 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] held that the Application under Section 10 of IBC cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the Companies Act and registered at Office of Registrar of Companies, Ahmedabad. It is stated that one of the Promotors of the Appellant, namely Mr. Sanjay Gupta, filed the Application before the Adjudicating Authority in Form -6 under Rule-7 of the IBC- Application to Adjudicating Rules, 2016 seeking initiation of Corporate Insolvency Resolution Process (in short CIRP) in respect of Appellant Company under Section 10 for the reason that the Appellant Company was unable to meet its day to day financial Company Appeal (AT)(Insolvency) No. 946 of 2020 Page 3 of 10 requirements and unable to pay its Financial Creditors for the reason that the condition of marketing is not favourable and also competing marking scenario leads to become debt s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellant, would adversely impact on all the stakeholders including the employees of the Company. FINDINGS: 5. We have gone through the records submitted by the Appellant along with Appeal Paper Book. 6. Learned Adjudicating Authority considered the Application filed by the Appellant and rejected the Application by passing the following Order: 18. Admittedly, as also matter or record that, the applicant is not a corporate applicant as per form 6, Clause 3, the applicant is not a director and is disqualified under Section 164, wherein the name and address of the Director is shown as presently, there is no Director on the Board of the Company due to disqualification under Section 164 of the Companies Act 2013 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 20. On perusal of the record it is found that there is violation of Section 10(3)(c). In the instant matter as there is no special resolution passed for filing the application. For the sake of convenience Section 10(3)(c) is reproduced herein below: - Section 10(3)(c) The special resolution passed by shareholders of the corporate debtor or the resolution passed by at least three-fourth of the total number of partners of the corporate debtor, as the case may be, approving filing of the application. 21. On perusal of the record i.e., balance sheet as on 31.03.2016 (page 254) it is found that under the head deferred tax liability an amount of ₹ 10,34,37,089/- has been shown thereby meaning that no returns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Further, in the Application it is clearly mentioned in Form-6, part-1, coloumn-8 that there is no director on the Board of the company due to dis-qualification under Section 164 of the Companies Act, 2013. It is also stated in the said column that the Promotors of the Company being involved in the management of Company, initiated CIRP on their own. However, as per the requirements under law, there is no Resolution passed by the Shareholders of the Corporate Debtor, though, admittedly the Applicant Company shows that there are other Promotors and the List of Promotors (copy) annexed at Annexure-I (page 46). Apart from the above, Financial Creditors, namely Small Industries Development Bank of India (SIDBI) and Indian Overseas Bank (IOB) ini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Adjudicating Authority with a bonafide intention and we affirm that the Adjudicating Authority rightly rejected the Application of the Appellant. 10. Learned Counsel for the Appellant relied upon the judgment of this Tribunal in the matter of M/s Unigreen Global Private Limited Vs. Punjab National Bank and Others- Company Appeal(AT)(Insolvency) No. 81 of 2017 . The facts of that case are different from the facts of this case. In M/s Unigreen Global Private Limited Vs. Punjab National Bank and Others the issue arises for consideration where non-disclosure of facts beyond the statutory requirements under the IBC read with relevant forms prescribed under IBC can be a ground for dismissal of Application for initiation of CIRP. 11. In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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