TaxTMI 
TaxTMI 
2019 (2) TMI 1621
X X X X Extracts X X X X
X X X X Extracts X X X X
....REST DUE 1-January-2015 to 20-March-2018** Balance Time period for which interest is calculated Total no. of days Interest rate Interest 1,60,00,000.00 1st January, 2015 to 31st March, 2015 90 24% 9,46,849 1,69,46,849.00 1st April, 2015 to 31st March, 2016 366 24% 40,78,387 2,10,25,236.00 1st January, 2015 to 31st March, 2015 21 24% 2,90,321 2,05,25,236.00 1st January, 2015 to 31st March, 2015 344 24% 46,42,640 2,54,58,197.00 1st January, 2015 to 31st March, 2015 354 24% 59,25,831 Grand Total 1,58,84,028 INDIVIDUAL WORKING OF LOAN DRAWN DOWN FROM BANKS AND INTEREST DUE 27-November-2014 to 20-March-2018** Balance Time period for which interest is calculated Total No. of days Interest rate Interest 1,35,00,000.00 27th November, 2014 to 27th January, 2015 62 7% 1,60,520.55 1,70,50,000.00 28th January, 2015 to 17th March, 2015 49 7% 1,60,223.29 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tor to initiate deposits with the Corporate Debtor on the basis of an assured return scheme. 2.2. The Corporate Debtor had allegedly accepted the deposits from the Financial Creditor from the year 2012 onwards till April 2014, totalling to an amount of Rs.1,40,00,000/-. The Deposit was made on the assurance of Interest @ 24% p.a. on the basis of the assured return scheme. The Financial Creditor had made the deposits on various dates. 2.3. Subsequently it is informed that in the year 2014 the Corporate Debtor had convinced the Petitioner/ Financial Creditor to invest in a flat based on an investment scheme. The Corporate Debtor and the Financial Creditor executed a Memorandum of Understanding in June 2014 ("Investment MoU"). According to this MoU:- - the contribution towards the investment scheme was apportioned from the Deposit; - the amount utilized from the Deposit was merely an extension of the scheme offered on the Deposit. The Corporate Debtor continued to remain liable to pay interest at 24% per annum on the amounts utilized from the Deposit towards the investment scheme; - the Financial Creditor was to avail of a Bank loan using the said flat....
X X X X Extracts X X X X
X X X X Extracts X X X X
....oan account and had not paid any further amounts during the year and in April, 2016 made an additional payment of Rs.5,00,000/- to the Financial Creditor against such revised deposit, without discharging the debt entirely. It is alleged that since May, 2016 till date, no payments were made to the Financial Creditor. 2.8. The Petitioner/ Creditor further submitted that the Corporate Debtor had acknowledged its obligation for these amounts by email dated 27.12.2016. Rather time and again given verbal assurances that the outstanding dues will be cleared soon. 2.9. The Petitioner/ Creditor also submitted that as per the details of the transaction stated in Form 1, the Corporate Debtor owes a sum of Rs.1.60 Crores at an Interest rate of 24% per annum, INR 1,84,14,000/-at an Interest rate of 7% per annum (simple interest) towards the loan drawn from Banks, INR 13,68,820/- at an Interest rate of 12% per annum towards the EMI's paid by Financial Creditor on behalf of Corporate Debtor and all interest and charges accrued on the home loan account under the Investment MoU, as per actuals till date. The total amount payable including unpaid accrued amounts on home loan account and the in....
X X X X Extracts X X X X
X X X X Extracts X X X X
....has to be specific authorization to file an application. 3.1. The Respondent claimed that the Power of Attorney nowhere delegate or authorize to file Application to initiate Corporate Insolvency Resolution Process and argued that the authorization should provide that the application can be filed for initiating Corporate Insolvency Resolution Process under the Insolvency and Bankruptcy code, 2016. Corporate Debtor vehemently argued that there is no reference of Corporate Insolvency Resolution Process or IBC in the Power of Attorney. Also submitted that during the course of hearing decided not to rectify this defect and in fact made submission to the effect that Power of Attorney holder can file such an application. Therefore, at this stage, Applicant cannot be permitted to rectify the defect. 3.2. The Respondent also submitted that the Application is incomplete for the following reasons:- (a) There is a requirement under the code to furnish the record of default with information utility, the same has not been furnished. (b) Record of default with credit information company is also not furnished. (c) The Applicant is to furnish its own books of accoun....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... is paid by the Corporate Debtor to the bank, it cannot be recovered by the Applicant from the Corporate Debtor. Admittedly, this amount is, till date, not paid back to the bank and therefore the question of Applicant demanding this money from the Corporate Debtor will not arise. This claim is premature. 3.6. The Third claim is a claim for Rs.13.68 lakhs approximately towards the EMI, which the Applicant claims that he had paid and he is entitled to reimbursement. This transaction is not a transaction of loan. The loan is taken by the applicant from the bank and Corporate Debtor was supposed to reimburse the said amount. 3.7. The Respondent further submitted that the Memorandum of Understanding, the Applicant seem to rely upon, is undated and in fact provided for adjustment of the entire fixed deposit amount. The amount which the Applicant is claiming separately under the present application is already adjusted towards the price of the flat. The amount of Rs. 905.25 lakhs is transferred from fixed deposit towards the price of the flat. 3.8. Therefore, the Respondent/ Corporate Debtor submitted that, if the Applicants relies on the memorandum of understanding the contention....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t proper to move this Petition to protect the finances of the Petitioner. 4.1. The decision on which the Respondent Debtor has placed reliance viz. Palogix Infrastructure Private Limited (supra) is totally different on facts as well as on law. In that case the issue was that whether in a case of a Corporate Body whether a Petition under Insolvency can be filed by any person representing that Corporate Body without having proper authority to represent the said Corporate Body duly approved in Resolution passed by the Management. In that situation a specific Power of Attorney for some specific execution of work is required to be issued. On the contrary, the Petition in hand is submitted by an Individual in respect of his own finances advanced as a Loan to the Financial Debtor. An individual, specially when he is NRI, has to authorize an individual resident of India to act on his behalf and to protect his interest in India. There is no provision in the Insolvency Code prescribing a particular mode and manner for writing a Power of Attorney for the purpose of filing of a Petition under Insolvency Code before NCLT. In the absence of any specific guidelines, this issue of authorization....
X X X X Extracts X X X X
X X X X Extracts X X X X
....estment MoU, therefore, the Petitioner was compelled to pay the instalments to the Bank. 4.6. In the light of the above discussion and on due perusal of the documents annexed, the Debt is to be qualified as "Financial Debt" as defined under section 5(8) of Insolvency & Bankruptcy Code, 2016. As a result, the Financial Creditor has filed this Application for initiating Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor. 4.7. Since this is a Petition of "Financial Creditor", therefore, the Insolvency Process shall commence as prescribed under Section 7 of I&BC, 2016. The defence advanced by the Corporate Debtor is that the Power of Attorney holder cannot file Application under section 7 of The Code to initiate Corporate Insolvency Resolution Process against the Corporate Debtor. Further, the stand of the Corporate Debtor that the Petitioner, being an Individual entity, cannot file an Application under I&B Code, 2016, as stated to have contended in the case of ICICI Bank Limited Vs. Palogix Infrastructure in Appeal No.37 of 2017 does not hold good in this case. The Petitioner/ Creditor has given unqualified authority by way of Additional Vakalatnama on 1....