9911796707
TMI Blog2022 (10) TMI 587X X X X Extracts X X X X X X X X Extracts X X X X ..... efault and has admitted the Application. Challenging the order admitting Section 7 Application, this Appeal has been filed by the Suspended Director of the Corporate Debtor. 2. Shri Gaurav Mitra, Learned Counsel appearing for the Appellant challenging the impugned order has raised only one submission i.e. Application under Section 7 filed by the Financial Creditor was not filed by an authorised person. It is submitted that Section 7 Application was supported by a Power of Attorney dated 24.01.2005. It is submitted that there was no Resolution by Board of Directors authorising the person who has filed Section 7 Application, hence, the Application was not maintainable and ought to have been rejected by the Adjudicating Authority. It is submitted that although the submission with regard to incompetency of Section 7 Application was raised but the Adjudicating Authority has not considered the submission in right perspective rather has held that Power of Attorney executed by Syndicate Bank is valid authority for filing present Application by Canara Bank. 3. Learned Counsel appearing for the Bank refuting the submissions of the Learned Counsel for the Appellant contends that there was n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Notification dated 27.02.2019 issued by the Ministry of Corporate Affairs, which is to the following effect:- "MINISTRY OF CORPORATE AFFAIRS NOTIFICATION New Delhi, the 27th February, 2019 S.O. 1091(E).-In exercise of the powers conferred by sub-section (1) of section 7 of the Insolvency and Bankruptcy Code, 2016 (31 of 2016), the Central Government hereby notifies following persons who may file an application for initiating corporate insolvency resolution process against a corporate debtor before the Adjudicating Authority, on behalf of the financial creditor: - (i) a guardian; Office Near Mool Chand Hospital New Delhi 110024. Email: [email protected] A copy of Power of Attorney (POA) is attached with the petition. (ii) an executor or administrator of an estate of a financial creditor; (iii) a trustee (including a debenture trustee); and (v) a person duly authorised by the Board of Directors of a Company." 8. To support his submission, Learned Counsel for the Appellant placed reliance on the judgment of this Tribunal in 'Palogix Infrastructure Pvt. Ltd. vs. ICICI Bank Ltd.- Company Appeal (AT) (Ins.) No. 30 of 2017". In the above case also, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the reasons aforesaid, we find no ground to interfere with the impugned order(s). All the appeals are dismissed, the order of admission of application under section 7 is affirmed. However, in the facts and circumstances of the case, there shall be no order as to cost." 9. In the above case, this Tribunal has noted that Financial Creditor- Bank by Board Resolution has authorised his officer to do the needful in the legal proceeding and mere mention of word Power of Attorney by delegating such power shall not take away the authority of such officer. This Tribunal accepted that the person who had filed Section 7 Application was entitled to file and order of the Adjudicating Authority admitting Section 7 Application was not interfered with. 10. Another judgment of this Tribunal which has been relied by the Counsel for the Appellant is "Ramesh Chander Gupta vs. Punjab National Bank- Company Appeal (AT) (Ins.) No. 179 of 2017" which in essence has relied on 'Palogix Infrastructure Pvt. Ltd." (supra). This Tribunal in paragraphs 6 and 7 found Senior Manager of the Bank entitled to file the Application. 11. We may notice the Notification relied by Counsel for the Appellant dated 27. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , submitted that the application filed on behalf of the Financial Creditor under Section 7 of the Code was on the basis of a power of attorney. He relied upon a judgment of the NCLAT in Palogix Infrastructure Private Limited v. ICICI Bank Limited1 in which it was held that an 'authorised person', distinct from a 'power of attorney holder', can file an application under Section 7 and that a 'power of attorney holder' is not competent to file an application on behalf of a financial creditor. According to Mr. Mukherjee, the defect in filing of the application by an unauthorised person is not curable. Assuming it is curable, the Financial Creditor failed to rectify the defect within the time stipulated under Section 7 (5) of the Code, in spite of an order passed by the Adjudicating Authority on 22.01.2020 granting time to the Financial Creditor. He submitted that the person who filed the application under Section 7 of the Code is not the authorised representative of the Financial Creditor and therefore, the application was liable to be dismissed." 15. The Hon'ble Supreme Court rejected the objection of the Appellant and while noticing the judgment of this Tribunal in 'Palogix Infrast ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on process, in spite of default in repayment. We approve the view taken by the NCLAT in Palogix Infrastructure (supra). 15. In the present case, Mr. Praveen Kumar Gupta has been given general authorisation by the Bank with respect to all the business and affairs of the Bank, including commencement of legal proceedings before any court or tribunal with respect to any demand and filing of all necessary applications in this regard. Such authorisation, having been granted by way of a power of attorney pursuant to a resolution passed by the Bank's board of directors on 06.12.2008, does not impair Mr. Gupta's authority to file an application under Section 7 of the Code. It is therefore clear that the application has been filed by an authorised person on behalf of the Financial Creditor and the objection of the Appellants on the maintainability of the application on this ground is untenable." 16. The above judgment of the Hon'ble Supreme Court clearly holds that an Application under Section 7 even if it is on the basis of Power of Attorney which is referable to the Resolution of the Board is fully maintainable. 17. In the present case, we have looked into the Power of Attorney which ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
