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TMI Blog2017 (12) TMI 1842X X X X Extracts X X X X X X X X Extracts X X X X ..... Reconstruction Co. Ltd. based on authorization letter dated 17/8/2017 annexed with the application at page 26 and 27 marked as Annexure A. 3. The Corporate Debtor Shree Coke Manufacturing Co. Pvt. Ltd., Identification No. is U23101WB2010PTC153439. The name and registration number of the proposed interim resolution professional is Mr. Anil Agarwal, Registration No. is IBBI/IPA-001/1P-P00270/2017-18/10514 and address is AAA Insolvency Professionals, LLP, 15F, Anil Roy Road, 2nd Floor, Kolkata - 700 029 emails [email protected]. 4. The applicant has stated that the respondent approached for various credit facilities from Bank of India. Accordingly, by a sanction letter dated 15/12/2011 Bank of India agreed to sanction cash credit of Rs,5 crore and letter of credit of Rs.20 crore totaling a sum of Rs.25 crore. Copy of the sanctioned letter is annexed with the application and marked as Annexure C. 5. In terms of the sanctioned letter the corporate debtor was obliged to secure the loan by way of mortgaging immovable properties as collateral security, hypothecating the tangible movable assets, plants and machinery and by providing personal guarantee of the Directors. The c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orate debtor that the application is filed by one Ms. Sukanya Sahani who is authorized to file the application by a board resolution which cannot be terms as a board resolution as the same is signed by Company Secretary and not Chairman or the Managing Director or Director of the Board. As such by way of such improper authorisation cannot be accepted and encouraged. In view of the above circumstances the corporate debtor prayed for dismissal of the application in limin with cost. 12. The applicant filed rejoinder denying the contentions raised in the objection by reiterating what has been stated in its application. 13. Heard Ld. Counsel for the petitioner as well as the Ld. Counsel for the respondent at length and perused the records. 14. Ld. Counsel for the respondent mainly stressed his argument based on the assignment agreement Annexure-T that there is no pre-existing contract between the corporate debtor and the applicant and that Annexure T is not binding on it. According to him it is not a legally executed document and, therefore, the petitioner herein is not a financial creditor. He also highlighted an interim application at his hand and prays for leave to challenge the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16. In the case in hand corporate debtor admitted its defaults vide its letter Annexure U and Annexure V. Truly its admission is not to the applicant but to the Bank of India. Being admitted a debt is due to the Bank of India from whom the corporate debtor availed loan the limited question in a case of this nature is to ascertain as to whether the petitioner is a Financial Creditor as alleged and whether there is existence of default from the evidence furnished by the financial creditor as provided under section 7 (4) of I&B code. That being the limited question to be determined in this case we are not inclined to grant leave to file interim application to challenge the status of the applicant company and declined to grant further time to file additional objections. 17. The Ld. Counsel for the corporate debtor/respondent main challenge is that respondent did not recognize the petitioner and therefore there is no privity of contract by and between petitioner and the respondent. According to him the Annexure T is not a legally executed assignment deed and hence petitioner cannot file an application of this nature. Annexure T at page 109 is the disputed assignment deed. Ld Counsel f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y rate or price and for calculating the value of any derivative transaction, only the market value of such transaction shall be taken into account; (h) any counter -indemnity obligation in respect of a guarantee, indemnity, bond, documentary letter of credit or any other instrument issued by a bank or financial institution; (i) the amount of any liability in respect of any of the guarantee or indemnity for any of the items referred to in sub-clauses (a) to (h) of this clause; 20. So, a financial creditor falls under section 5(7) can file an application for initiating corporate insolvency resolution process against a corporate debtor before this Adjudicating Authority when the default has occurred. No doubt the debt claimed is a financial debt as defined under section 5(8) of I&B Code. Herein this case Annexure T is found a legally executed assignment agreement. It is a registered document, stipulating all the terms and conditions. Being found Annexure T, a document admissible in evidence, this Adjudicating Authority cannot go behind the purpose of execution of the deed. Ld. Counsel for the respondent submits that it is a fraudulent document and that respondent has no knowle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Bare in mind the proposition held in the above cited decision, the challenge raised by the respondent as against the status of the petitioner and that the assignment deed is not a legally executed document, and not binding on the respondent and that it was executed with a mala fide intention is found unsustainable under law. Being found that petitioner is an assignee to whom debt due to Bank of India has been legally assigned we have no hesitation in holding that petitioner is a financial creditor comes under the definition of section5(7) of I&B Code. 22. One another contention stressed by the Ld. Counsel for the respondent is that Ms. Sukanya Sahani is not authorised to sign and affirm the application filed in this case and hence this petition is not maintainable for want of valid authority. According to him the resolution relied upon by the petitioner cannot be termed as a board resolution as it was signed by the company secretary of the company. Petitioner has filed this application based on resolution dated 17/8/2017. The resolution is shown as Annexure A. A perusal of Annexure A shows that it is certified copy of the resolution passed by circulation by the Board of Directo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Ltd. Vs Jalan International Hotels Ltd we hold that proceedings pending before Debt Recovery Tribunal will not be a bar in considering the petition under section 7 of I&B Code. That being the settled legal stand we have already taken very same proposition is applicable in this case. Hence, we are of the view that initiation of proceedings under SARFESI Act,2002, by the petitioner is also not a bar to the application in hand. 26. The rest of the allegations that petitioner filed this petition with mala fide intention, that petitioner suppressed material facts are all found not worthy for consideration. In an application of this nature, this Adjudicating Authority is bound firstly to consider as to whether there is existence of default from the records and information utility or based on other evidence furnished by the financial creditor. If the petitioner succeeds in proving default of which the claim put forward by the petitioner and satisfy Sec.7 (5)(a) of the I& B Code, this Adjudicating Authority is bound to admit the application. The procedure adopted for the disposal of this application is summery in nature. This petition has been filed by the petitioner on 25/10/2017. Peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions 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. (4) The order of moratorium shall affect the date of such order till the completion of the corporate insolvency resolution process. 30. Provided that where at any time during the corporate insolvency resolution process period, if the Adjudicating Authority approves the resolution plan under sub-section (1) of section 31 or passes an order for liquidation of corporate debtor under section 33, the moratorium shall cease to have effect from the date of such approval or liquidation order. 31. Mr. Anil Agarwal, Registration No. is IBBI/IPA-001/1P-P00270/2017- 18/10514 and address is AAA Insolvency Professionals, LLP, 15F, Anil Roy Road, 2nd Floor, Kolkata - 700 029 emails [email protected] is hereby appointed as Interim Resolution Professional. 32. Necessary public announcement as per section 15 of the I & B Code, 2016 may be made. Let the copy of the order be communicated to the Applicant/Operational Creditor as well as Corporate Debtor, and I,R.P by way of E-mail and post forthwith. List the matter for hearin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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