TaxTMI 
TaxTMI 
2021 (5) TMI 110
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....eserve Bank of India. The applicant submits that the Respondent is in the business of wholesale trading of copper and zinc. That the Respondent applied for a Channel finance Loan to the Tune of Rs. 3,00,00,000/- vide loan application form dated 24.08.2017. ii. The applicant submits that the respondent made representation that it was in a financially sound position to honor its obligations, pursuant to which the applicant issued a Sanction letter dated 04.07.2017, duly sanctioning a channel finance facility to the tune of Rs. 3,00,00,000/- to the Respondent. Salient terms of the Facility are: (i) Tenure: 12 months (ii) Rate of Interest: 10.5% pa. i.e., ROI equal to STIR less 6.50% (iii) End Use: For purchase of raw materials from Vedanta Limited (iv) Payment under Facility: Disbursed to Vedanta Limited directly (v) Additional interest: (a) 6% p.a. for overdue days 1-30, (b) 8% p.a. for overdue days 31-60, and (c) 10% pa. for overdue days greater than 60; over and above the normal interest rate. (vi) Security: First and exclusive charge by way of hypothecation on inventory purchased from Vedanta Limited funded by the Applicant. (vii) Guarantee: irrevocable and uncondi....
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....ted that the application is verified by affidavit of one Mr. Sushant Sharma who has not stated in the supporting affidavit as to which branch does he belong to. Further, the Respondent submits that the copy of resolution passed by the Board of Directors of the company on 22.12.2017 does not contain that Mr. Sushant Sharma is authorized on behalf of the applicant to file the application. iii. The Respondent alleges that Mr. Sushant Sharma is not authorized to institute the proceedings on behalf of Tata Capital Financial Services or to represent the applicant. iv. The Respondent in its reply cited the decision of the Hon'ble Division Bench of the High Court of Delhi passed in the matter of "Deepak Khosla & Anr. Vs. UOI & Ors." [W.P.(C) No. 7651/2009] wherein it has been held as follows: 12. Pertaining to vakalatnamas executed not by the Principal himself but by some person claiming to appoint or give authority on this behalf, Rule 1, Part-A of Chapter 16 of the Delhi High Court Rules, inter alia, stipulates:... (2) Proof required when power of attorney not executed by the principal - When such appointment or power is not executed by the principal himself, but by some person....
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.... applicant did not get blank application signed and did not unilaterally fill in the application form without explaining the terms therein and did not impose any Arbitrary clause as alleged by the Respondent. 4. While advancing the arguments before the Tribunal on 11.02.2021, the Learned counsel for the Corporate Debtor pointed out certain defects in the application and the Tribunal granted time to the applicant to cure the defects. 5. In pursuant to the Tribunal's order dated 11.02.2021, the Financial Creditor filed an affidavit stating that During the course of the arguments advanced by the Ld. Counsel for the corporate debtor, the Ld. Counsel has raised the following defects in the application: a) The application is not maintainable since Mr. Sushant Sharma, who has been identified as the person authorized to submit the application as stated in Entry 5 of Part I of Form-I, is not adequately authorized vide Board Resolution dated 22.12.2017 (Annexure B of the Application). b) The written communication by the proposed interim resolution professional as set out in Form 2 (Annexure U of the Application) is incomplete since pages 187 and 188 of the Application are missing. ....
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....ate Debtor has also filed its written submissions in which he has reiterated the certain points raised in the Reply. 9. We have gone through the documents filed by both the parties and heard the arguments made by the counsels. The Financial Creditor has claimed the default on part of the Corporate Debtor for the Loan amount of Rs. 3,14,08,827/-(Three Crore Fourteen Lakhs Eight Thousand Eight Hundred Twenty-Seven). 10. The Corporate Debtor in its reply raised defects regarding the Authorization letter, jurisdiction of the Hon'ble Tribunal and Computation of the Default amount which the financial Creditor vide its reply affidavit dated 16.02.2021 has replied to all the objections raised. Mere plain reading of the provision under section 7 of IBC and decision (supra) shows that in order to initiate CIRP Under Section 7 the applicant is required to establish that there is a financial debt and that a default has been committed in respect of that financial debt. That while dealing with the above said matter the Financial creditor has clearly established that a financial debt in form of Channel finance Loan has been advanced to the Corporate Debtor which can be clearly substantiated....