TaxTMI 
TaxTMI 
2018 (1) TMI 1248
X X X X Extracts X X X X
X X X X Extracts X X X X
....own, Hissar. The Respondent-Corporate Debtor was incorporated on 10.06.2009 as a company registered under Companies Act, 1956 and allotted CIN U25194HR2009PTC039191 with authorised share capital of Rs. 50 lacs and paid up capital of Rs. 37 lacs. Copy of Memorandum and Articles of Association of the respondent are at Annexure A/3. The Registered Office of the corporate debtor is at Hissar, in the State of Haryana and therefore, the matter falls within the territorial jurisdiction of this Tribunal. 3. The instant petition has been filed through Mr. Navdeep, Senior Manager of the Branch at Hissar in whose favour, the Bank has executed General Power of Attorney dated 05.11.2015 Annexure A-1. The competent authority vide letter dated 28.07.2017 Annexure A/2 has also accorded permission to the Branch Head to file the petition before NCLT under the Insolvency and Bankruptcy Code, 2016 against the Respondent-Corporate Debtor. Vide this letter Mr. R.S. Bhatia, Advocate has been authorised on behalf of the Bank to file this petition. The competent authority has also proposed the name of Mr. Jalesh Kumar Grover, Resolution Professional to act as Interim Resolution Professional. 4. The f....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ion. 8. By way of evidence in support of the claim of default committed by the corporate debtor, the petitioner-bank has relied upon various balance confirmation letters executed by the corporate debtor ranging from 07.05.2013 to 28.05.2014 which are from Annexure A/28 to A/33. The petitioner-bank has also relied upon statements of account of the corporate debtor under different loan accounts as at Annexure A/25 to A/27 which are certified under the Bankers Books Evidence Act, 1891. 9. Before filing this petition, the petitioner-bank also served Demand Notice to the corporate debtor (Annexure A/34) dated 09.02.2017 wherein the then outstanding amount as on 08.02.2017 was stated as Rs. 36833617.24. The petitioner-bank has also relied upon CIBIL report (Annexure A/24) dated 27.10.2016 in order to bring further evidence of default. In this notice it was stated that the Bank proposes to initiate the proceedings under the Insolvency and Bankruptcy Code in case the debt remains unpaid by the date specified in the notice. 10. It is also stated that the corporate debtor mortgaged the factory building on the land measuring 14 Kanal 18 Marla comprised in Khewat No.350, Khatoni No.53....
X X X X Extracts X X X X
X X X X Extracts X X X X
....017 in Company Petition No. 37/2017, titled ICICI Bank Ltd. Vs. Palogix Infrastructure Private Ltd In the said case, the power of attorney was issued by the ICICI Bank on 20.10.2014, on the basis of which, the petition under the Code was filed. It is submitted that the terms of power of attorney in the instant case are similar to the power of attorney as discussed in the order dated 30.03.2017 in the matter referred to Guwahati Bench by the Division Bench of NCLT Kolkata and it was held that there should be a specific authorisation for the purpose of initiating the proceedings under the Code. It would be seen that the Kolkata Bench of NCLT ultimately in the order dated 12.04.2017 pointed out the aforesaid defect to the petitioner and issued a direction to rectify the defect within seven days. 17. The aforesaid judgment was discussed by the Mumbai Bench of NCLT in "M/s DF Deutsche Forfait AG and Anr. Vs. M/s Uttam Galva Steel Ltd.", CP No.45/I&BP/NCLT/MAH/2017, decided on 10.04.2017, wherein it was held that the nature of the proceedings under the winding up as well as insolvency is more or less the same, though the procedure is slightly different. 18. In the instant case, the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ion case." 21. In view of the aforesaid, I find the petition to have been filed by the Bank through a competent person. 22. Sub-section (3) of Section 7 of the code says that 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." 23. There is no dispute that the petitioner-bank has complied with the requirements of clause (b) of sub-section (3) of section 7 of the Code inasmuch as there is written communication by the proposed Interim Resolution Professional in Form No.2 as at Annexure A/4. All the necessary particulars required to be furnished have been given. It is stated that there are no disciplinary proceedings pending against the said Resolution Professional. Learned counsel for respondent pointed out that this Form No.2 is defective inasmuch as it does not bear date on which it was executed by the proposed Interim Resolution Professional. T....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the application under sub-section (2), ascertain the existence of a default from the records of an information utility or on the basis of other evidence furnished by the financial creditor under sub-section (3). (5) Where the Adjudicating Authority is satisfied that- (a) a default has occurred and the application under sub- section (2) is complete, and there is no disciplinary proceedings pending against the proposed resolution professional, it may, by order, admit such application; or (b) default has not occurred or the application under sub- section (2) is incomplete or any disciplinary proceeding is pending against the proposed resolution professional, it may, by order, reject such application: Provided that the Adjudicating Authority shall, before rejecting the application under clause (b) of sub-section (5), give a notice to the applicant to rectify the defect in his application within seven days of receipt of such notice from the Adjudicating Authority." 28. The existence of default has been shown from abundant evidence on record. The corporate debtor in the reply is not denying that it is in default of payment to the Bank. The above is ....