TaxTMI 
TaxTMI 
2018 (9) TMI 1529
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....porated on 18.04.1996 having its registered office at House No. 84, Avtar Enclave Paschim Vihar New Delhi-110063. Since the registered office of the respondent corporate debtor is in New Delhi, this Tribunal having territorial jurisdiction over the NCT of Delhi is the Adjudicating Authority in relation to the prayer for initiation of Corporate Insolvency Resolution Process in respect of respondent corporate debtor under sub-section (1) of Section 60 of the Code. 3. It is appropriate to mention that the applicant American Express Banking Corp. was registered with Registrar of Companies of NCT of Delhi and Haryana and was assigned foreign company registration number F03311 of 2008. The principal office of the applicant is at MGF Metropolitan, 7th floor, Saket District Centre, New Delhi-110017. 4. Mr. Dipender Singh, Portfolio Manager (Legal) of the applicant was duly authorized by the General Power of Attorney dated 30.11.2016 of the CEO of the applicant bank to sign and file the present application for initiation of corporate insolvency resolution process in terms of provisions of the Code. 5. The applicant has proposed the name of Ms. Rita Gupta for appointment as interim ....
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....oth the directors for respondent corporate debtor with seal of the company. • Account Agreement and Set-Up Form, Joint & Several Liability duly signed and sealed for respondent corporate debtor. • Copy of PAN and voter it card of Gaurav Vasudeva. • Copy of Pan and Voter ITD card of Ritu Rani Vasudeva. • Copy of opinion of the independent Auditor dated 05.08.2015. • Copy of the resolution of the Board of Directors of respondent company held on 18.09.2015. • Copy of the MCA document showing the details of the Corporate Debtors. • Copy of copy of Certificate of Incorporation of Corporate Debtor along with its Memorandum of Association. 12. The applicant has further enclosed copies of account statement in respect of respondent corporate debtor showing total balance due for Rs. 5,245,020.60/- as on 15.09.2017. It has been stated in the application that the respondent corporate debtor has made a part payment of Rs. 1 lac on 11.02.2016 but thereafter no payment was made despite repeated requests and reminders. As the corporate debtor has failed in repayment of the outstanding dues of the applican....
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....uly authorised through a legal and valid power of attorney. 18. It is pertinent to mention here that vide order dated 16.05.2018 certain clarifications were sought from the applicant bank as follows: That date of incorporation of the applicant company has been wrongly mentioned in Part 1 of Form 5, as the date of incorporation is different from the date of establishment of place of business in India. That in part -IV of the Form it has been projected as if disbursement has been made by applicant to the respondent company and that the respondent is a borrower simplicitor. It is not for the Court to find out from the enclosed bills as to when, what amount and to whom the respective amounts were disbursed. The applicant is directed to state specifically the date of various disbursements and the respective amount of disbursement with the details of the recipient. In case the amount has not been disbursed to the respondent company, the status of the respondent be stated clearly i. e. whether borrower, guarantor, Co-obligator etc. There is also no clarity in the pleadings as to who has made the part re-payment of the debt and, what the actual date of default is. ....
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....ized corporate officer/s request American Express Banking Corp. "(AEBC)" to issue and American Express Gold Corporate Card ("Corporate Card)" on the company account to the applicant..." The status of the respondent is that of borrower which is manifest from the reading of the application form for availing corporate credit facility along with the agreed terms and conditions of the card member agreement. As depicted in the statements of account (already placed on record) at pages 27 and 28, the aforesaid card was used by the corporate debtor through its director on different dated from 28.11.2015 till 10.01.2016. The abovementioned credit facility was availed by the Corporate Debtor through its director Gaurav Vasudeva. It is clarified that the aforesaid card no. AEBC 3465-357697-01005 was used by the respondent / corporate through its director for its use and utilisation. This position is amply clear from the perusal of the card member application form and the agreed terms and conditions. That an amount of Rs. 1,00,000/'- was paid by the corporate debtor on 11.02.2016. The account was closed on 15.03.2016 as the corporate debtor defaulted to make ....
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.... "Certificate of Establishment of place of Business In India Foreign Company Registration Number: F03311 Year 2008 I hereby certify that Form No.44 dated 27.03.2018 filed u/s 592 of the Companies Act, 1956 (No. 1 of 1956) notifying establishment of place of business in India with effect from 29.02.2008 by M/s American Express Banking Corp. a company originally incorporated in UNITED STATES Of AMERICA has been registered. Given under my hand at National Capital Territory of Delhi and Haryana this Twenty Eighth day of March Two Thousand Eight. -Sd- (Santosh Kumar) Deputy Registry of Companies National Capital Territory of Delhi and Haryana" (Emphasis given) 25. It is seen from the certificate that while allotting registration number, the applicant M/s American Express Banking Corp. has been referred as 'Foreign Company'. Similarly, it has been certified that M/s American Express Banking Corp. a Company originally incorporated in United States of America has been registered. The applicant has been clearly termed as a company by the registering authority of the companies. Accordingly, being a company, applicant ....
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....e 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.' 28. A creditor in order to come within the meaning of "Financial Creditor" has to fulfil the following essential criteria: i. A person to whom a 'financial debt' is owned and includes a person whom such debt has been legally assigned or transferred; ii. The debt along with interest, if any, is disbursed against the consideration for time value of money and includes any one or more mode of disbursed as mentioned in clause (a) to Clause (i) of sub-section (8) of Section 5. 29. Precisely "Financial debt" is a debt along with interest, if any, which is disbursed against consideration for time value of money. 30. In the present case the respondent corporate debtor has availed the credit facility on the stren....
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....4. Hon'ble NCLAT in the case of Palogix Infrastructure (P.) Ltd. (supra) at para 38 has held that, " This apart, if an officer, such as senior Manager of a Bank has been authorised to grant loan, for recovery of loan or to initiate a proceeding for 'Corporate Insolvency Resolution Process' against the person who have taken loan, in such case the 'Corporate Debtor' cannot plead that officer has power to sanction loan, but such officer has no power to recover the loan amount or to initiate 'Corporate Insolvency Resolution Process', in spite of default of debt." 35. In the present case Chief Executive Officer of the applicant American Express Banking Corp., in India has authorised Portfolio Manager (Legal) of the Bank to file the present application. In the facts it is felt that such technical objection should not stand in the way of examining the matter on merit. 36. The respondent has raised a further objection regarding non-joinder director of the company as a necessary party. As per the mutually agreed terms of the agreement the director as well as the company are jointly and severally liable to pay the outstanding dues to the applicant. It is therefore open to the financial....
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....is pertinent to mention here that the Code requires the adjudicating authority to only ascertain and record satisfaction in a summary adjudication as to the occurrence of default before admitting the application. What is material is that the default is at least 1 Lakh. Once the default is Rupees one Lakh or more the Code gets triggered in view of Section 4 of the Code. 41. The material on record clearly goes to show that respondent had availed the loan facilities and has committed default in repayment of the loan amount. Moreover, the application of the financial creditor is complete and there is no disciplinary proceeding pending against the proposed IRP. We are satisfied that the present application is complete and the applicant financial creditor is entitled to claim its outstanding financial debt from, the corporate debtor and that there has been a default in payment of the financial debt. 42. As a sequel to the above discussion and in terms of Section 7(5)(a) of the Code, the present application is admitted. 43. Ms. Rita Gupta having registration number IBBI/IPA 001/ IPP 00149 / 2017-18/10313, resident of 45-46, Basement, Satya Niketan, Moti Bagh-II, New Delhi-110021,....