TaxTMI 
TaxTMI 
2020 (12) TMI 953
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.... NARAHARI, MEMBER (TECHNICAL) The present appeal preferred aggrieved by the order passed by the learned Adjudicating Authority (National Company Law Tribunal, Ahmedabad Bench, Ahmedabad), in CP No. (IB) 61/10/NCLT/AHM/2018 dated 17th September, 2020 whereby the Adjudicating Authority rejected the Application of the Appellant filed under Section 10 of Insolvency and Bankruptcy Code, 2016 (in short IBC). BRIEF FACTS: 2. The Appellant is a registered Company under the Companies Act and registered at Office of Registrar of Companies, Ahmedabad. It is stated that one of the Promotors of the Appellant, namely Mr. Sanjay Gupta, filed the Application before the Adjudicating Authority in Form -6 under Rule-7 of the IBC- Application to Adjud....
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....ant further submitted that the Application was dismissed on frivolous grounds. He submitted that the Adjudicating Authority ought to have considered the legal Principles laid down by this Hon'ble Appellant Tribunal in the matter of "M/s Unigreen Global Private Limited Vs. Punjab National Bank and Others- Company Appeal(AT)(Insolvency) No. 81 of 2017". He Company Appeal (AT)(Insolvency) No. 946 of 2020 Page 4 of 10 submitted that in view of rejecting the Application of the Appellant, would adversely impact on all the stakeholders including the employees of the Company. FINDINGS: 5. We have gone through the records submitted by the Appellant along with Appeal Paper Book. 6. Learned Adjudicating Authority considered the Application fi....
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....ry creditors for goods, sundry creditors for operation etc. However, while going through the records it is found that there is no whisper about the outstanding amount. It is also pertinent to note that if the company is really insolvent why it has not opted for winding up application. Further, affairs of the company is managed by the Directors and not by the promoters. Since the promoters are already disqualified, the applicant has no authority to file the instant application. 20. On perusal of the record it is found that there is violation of Section 10(3)(c). In the instant matter as there is no special resolution passed for filing the application. For the sake of convenience Section 10(3)(c) is reproduced herein below: - ....
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.... of Attorney, (at page 47, Annexure-II) issued by Ms. Neelu Gupta, wife of Mr. Sanjay Gupta holding 4,50,000 Equity Shares of Rs. 10 each by appointing Mr. Sanjay Gupta, one of the Promotors to act as her lawful attorney for initiation of CIRP before Court of law. However, from the list of Promotors at Annexure-I (page-46), it is seen that Ms. Neelu Gupta holds only 3,30,000 Equity Shares. There are other Promotors but no Power of Attorney was issued except Ms. Neelu Gupta. Further, in the Application it is clearly mentioned in Form-6, part-1, coloumn-8 that there is no director on the Board of the company due to dis-qualification under Section 164 of the Companies Act, 2013. It is also stated in the said column that the Promotors of the Co....
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....f 2015 for recovery of its dues which is pending for adjudication. Despite all the efforts taken by the Financial Creditors, the Appellant Company failed and neglected to repay the loan as per the terms and conditions of the Bank. Application u/s 10 IBC in the backdrop of this factual scenario, can safely be held to have been filed only to wriggle out of liability to pay, as determined. CONCLUSION: 9. We are of the view that the Applicant has not approached the Adjudicating Authority with a bonafide intention and we affirm that the Adjudicating Authority rightly rejected the Application of the Appellant. 10. Learned Counsel for the Appellant relied upon the judgment of this Tribunal in the matter of "M/s Unigreen Global Private Lim....