TaxTMI 
TaxTMI 
2020 (9) TMI 1152
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....solvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 [hereinafter referred to as "the Rules"], as operational creditor/applicant. 2. The applicant is a limited company registered under the Companies Act, 1956, having identification number U45203GJ2003PLC062049 and having registered office at Chagodar, Dist. Ahmedabad, Gujarat State. 3. On issuance of notice, the financial creditors viz. State Bank of India, Central Bank of India, Indian Overseas Bank and Small Industries Development Bank of India (SIDBI) appeared through counsels and filed objections. 4. Learned counsel for SIDBI submitted that there is suppression of facts, therefore, the instant application is not maintainable. It is also submitted that the application so filed by the applicant is not a corporate applicant in view of the fact that the Director has already been disqualified under Section 164 of the Companies Act, 2013. It is submitted that on the request of the applicant company, SIDBI had granted assistance to the applicant by restructuring the existing MSME RFS limit by way of conversion of outstanding limit into term loan of Rs. 10,92,52,943/- and funded interest term loan of Rs.....
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....ant denying the averments made in the application. It is submitted by the learned lawyer of 10B that the applicant company had approached the bank for financial assistance and had submitted loan application dated 13.04.2011. The bank had granted short term loan for working capital requirements of the applicant to the tune of Rs. 7.00 crores on various terms and conditions as mentioned in the sanction letter dated 10.05.2011. In view of granting of aforesaid term loan, 10B had executed necessary documents on 17.05.2011 pursuant to the resolution passed by the applicant in its Board Meeting dated 12.05.2011. The said documents are as follows: (i) demand promissory note for Rs. 7.00 crores (ii) declaration (iii) Undertaking (iv) letter of instalment (v) consent cum authorisation letter 8. In view of execution of such documents, the corporate applicant had deposited title deeds of its immovable property situated at Village Lio-ka-guda, Tehsil Girwa, Dist. Udaipur, Rajasthan state with intention to create equitable mortgage thereof. The applicant had also executed irrevocable power of attorney/affidavit/declaration in respect of the afores....
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....appeared and filed reply. 11. It is further alleged that the applicant had no intention to repay the loan and had diversified the funds. The account of the applicant was declared as NPA on 30.04.2014 and, thereafter, proceedings were initiated by the bank under SARFAESI Act, wherein, the mortgaged property was sold by the bank for a consideration of Rs. 13,68,58,600/- and sale certificate was issued to the auction purchaser on 27.10.2017. The respondent bank had also filed a recovery application before the Debts Recovery Tribunal I at Ahmedabad being Original Application No. 53 of 2015, for recovery of its dues which is pending for adjudication. It is further alleged that the very purpose of filing of the instant application under section 10 is mala fide with a view to defraud the secured creditors, therefore, the application is required to be dismissed. 12. On receipt of the notice, Central Bank of India (CBI) also appeared and filed reply denying the statement made by the applicant in the instant application. It is submitted by CBI that the application so filed by the applicant is bad in the eye of law and not maintainable because the applicant has suppressed material facts....
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....stant application is required to be dismissed. It is further submitted that, even Ms. Neelu Gupta, while executing the Special Power of Attorney has not shown her Director Identification Number (DIN) which is mandatory for the signatory/Director of the company to mention DIN as per Section 154 of the Companies Act, 2013. That, under such circumstances, Ms. Neelu Gupta has no authority to execute SPA claiming herself to be one of the Directors of the company. 15. State Bank of India (SBI) also appeared through its counsel and filed reply, whereby SBI has given no objection to the said application. 16. Gone through the application as well as the record and the annexures filed therein. On perusal of the record it is found that as per the record of financial creditor - Central Bank of India, there are five directors as stated in para No. 12 above. However, subsequently, when it is verified with the MCA portal it is found that the pattern and status of the Directors have been changed and the same was never been informed to the financial creditors viz. CBI. Further, Ms. Neelu Gupta was never been a Director on the Board of the applicant company and as such she cannot execute SPA in....