TaxTMI 
TaxTMI 
2017 (12) TMI 974
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....anch through whom the instant petition has been filed. It is stated that vide resolution dated 20.02.2017 passed by the Board of Directors of the petitioner Bank, the General Managers were granted the authority to issue the power of attorneys in favour of the officers of the Bank with power to sub-delegate and accordingly Mr. Mrityunjay Kumar Gupta and Mr. Ravi Prakash Gupta have executed the power of attorney in favour of Pawan Kumar, Chief Manager of the Bank. The Board resolution of the Bank dated 20.02.2017 is at Annexure A-1 and the power of attorney dated 20.04.2017 is at Annexure A-2. 3. When the matter was listed on 13.09.2017, learned counsel for the petitioner Bank also contended that the power of attorney in favour of Pawan Kumar authorised him among other acts to initiate the insolvency and bankruptcy proceedings on behalf of the Bank. The petitioner also filed affidavit dated 27.09.2017 of one Vinod Kumar stating therein that copy of the complete set of petition under Section 7 of the Code was sent to the Corporate Debtor by speed post at its registered office. Copy of the postal receipt dated 19.09.2017 is attached at Annexure A-1 with which the track report of the p....
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....te are at Annexures A-14 to A-19. 6. The petitioner Bank also received a letter dated 27.12.2011 from Punjab National Bank, Bikaner, Rajasthan confirming creation of first parri passu clear equitable mortgage charge on the land and building of the Corporate Debtor along with the entry dated 27.12.2011 as at Annexure A-20. Thereafter the loan was reviewed and fresh sanction letter dated 22.08.2013 Annexure A-21 was also issued. This review sanction letter was issued on the request received from the Corporate Debtor for enhancement of the credit facility from Rs. 30 crores to Rs. 50 crores as per the terms and conditions contained in the review sanction letter. The Corporate Debtor again approached the Bank for review of the working capital facilities and reduction of the limit to Rs. 30 crores in January, 2015 and the same was granted vide letter dated 06.02.2015. The copy of review sanction letter dated 06.02.2015 is at Annexure A-23 and the copy of the resolution dated 21.04.2015 of the Corporate Debtor at Annexure A-24 showing that the Managing Director and Mr. Jitender Jindal Director of the respondent company were authorised to sign all the documents/papers/deeds etc. for the ....
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....petitioner Bank has proposed to initiate the action under the Code. Copy of the said letter is Annexure A-37, but no response was received. 10. Notice of this petition was issued to the Respondent-Corporate Debtor. The petitioner filed his affidavit of service dated 18.09.2017 with the track report of the postal department in proof of the delivery of postal article. 11. The Respondent-Corporate Debtor filed a short reply, wherein the factum of availing of the credit facilities and the respondent being in default has not been disputed. It is stated that the respondent is at the final stages of receiving US $ 40 million from a party based in Houston, USA and the instant petition would derail the recovery process affecting the management of the Respondent-Corporate Debtor, which has employed about 150 employees. The version relating to the details of transaction with the said US firm has also been given. It is also stated that the total amount of dues in respect of the transaction of USA is US $ 227.73 million equivalent to Rs. 1246 crores, for which the respondent along with the related company filed a civil suit against Economy Polymers & Chemicals, USA on 19.11.2013 Annexure A. ....
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....efault in repaying the financial debt. 16. Sub Section (3) of Section 7 of the Code reads as under:- "The financial creditor shall, along with the application furnish- (a) record of the default recorded with the information utility or such other record or evidence of default as may be specified; (b) the name of the resolution professional proposed to act as an interim resolution professional; and (c) any other information as may be specified by the Board." 17. The Financial Creditor has furnished the entire evidence of default as per the particulars given in Form No.1 as prescribed under the Rules. Reference to various documents of loan, the creation of security, ROC charge and agreements, hypothecation deed, equitable mortgage has already been made while narrating the facts of the case. The amount in default in Export Packing Credit Account and current account have been separately given in column No.2 of part IV of the application. In paragraph 12 of the reply also, the Corporate Debtor being in default is admitted that as on 01.01.2015, there was an outstanding amount of Rs. 26,49,50,000/- in default, out of which an amount of about Rs. 12,66,50,000/- was paid in six mo....
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.... however, contended vehemently that the Corporate Debtor would clear all defaulted outstanding amount of the petitioner by month of January, 2017, but the petitioner Bank has initiated the proceedings in a hasty manner. This contention cannot defeat the admission of this petition. 21. The learned counsel for petitioner referred to the judgment of Hon'ble National Company Law Appellate Tribunal in the matter of Innoventive Industries Ltd. v. ICICI & Anr." Company Appeal (AT) (Insovency) No. 1 & 2 of 2017, 2017, SCC Online NCLT 70. It was held as under:- "82. As discussed in the previous paragraphs, for initiation of corporate resolution process by financial creditor under sub-section (4) of Section 7 of the Code, 2016, the 'adjudicating authority' on receipt of application under sub-section (2) is required to ascertain existence of default from the records of Information Utility or on the basis of other evidence furnished by the financial creditor under sub-section (3). Under Section 5 of Section 7, the 'adjudicating authority' is required to satisfy - (a) Whether a default has occurred; (b) Whether an application is complete; and (c) Whether any disciplinary proceeding is agains....