Sh Sumeet Ahuja vs Union Bank Of India & Another

Sh Sumeet Ahuja Appellant

Vs

Union Bank of India & another Respondents

Present:

For Appellant:-Mr Ankit Singal with Mr Aditya Khamparia, Advocates.

For Respondents: - Mr. Aslam Ahmed with Ms Shraddha Chaudhri.

ORDER

16.11.2017 - The petition for substitution has been filed by Mr. Sumeet Ahuja,

Director for impleading him as appellant. Learned counsel for the appellant

further prays to transpose M/s Paramshakti Steels Ltd through Interim

Resolution Professional as the second respondent.

Having heard both the parties the petition for substitution is allowed. Let

Shri Sumeet Ahuja be substituted as appellant and M/s Paramshakti Steels Ltd

through IRP be transpose as second respondent. Appellant to make necessary

corrections in the cause title. I.A. No.860 of 2017 stands disposed off.

(Justice S.J. Mukhopadhaya) Chairperson

(Justice Bansi Lal Bhat) Member (Judicial) bm /unni NATIONAL COMPANY LAW APPELLATE TRIBUNAL NEW DELHI

COMPANY APPEAL(AT)(INSOLVENCY) NO.128 OF 2017

IN THE MATTER OF:

Sh Sumeet Ahuja Appellant

Vs

Union Bank of India & anaother Respondents

Present:

For Appellant:-Mr Ankit Singal with Mr Aditya Khamparia, Advocates.

For Respondents: - Mr. Aslam Ahmed with Ms Shraddha Chaudhri.

ORDER

16.11.2017- The present appeal has been preferred by the appellant

against the order dated 3rd July, 2017 passed by the Adjudicating Authority,

(National Company Law Tribunal), Mumbai Bench, Mumbai in CP

No.727/I&BP/NCLT/MAH/2017 whereby and whereunder the Adjudicating

Authority admitted the application preferred by the 1st respondent (financial

creditor) under Section 7 of the Insolvency & Bankruptcy Code, 2016 (hereinafter

referred to as the "I&B Code"), passed order of moratorium and appointed

Interim Resolution Professional (IRP).

2. The main plea taken by the Learned counsel for the appellant is that the

application under Section 7 of the I&B Code has been filed by the Power of

Attorney holder which according him is not permissible.

3. The 1st respondent has refuted such allegations as the application has

been filed by the 'authorised person' namely the Deputy General Manager of the

Bank.

4. Similar issue fell for consideration before this Appellate Tribunal in the

case of M/s Palogix Infrastructure Pvt Ltd Vs ICICI Bank, Company Appeal

(AT) (Insolvency) No.30 of 2017. In the said case this Appellate Tribunal by its

judgement dated 20th September, 2017 observed and held as under:

"36. x x x x x. If general authorisation is made by any 'Financial

Creditor' or 'Operational Creditor' or 'Corporate Applicant' in

favour of its officers to do needful in legal proceedings by and

against the 'Financial Creditor' / 'Operational Creditor'/'Corporate

Applicant', mere use of word 'Power of Attorney' while delegating

such power will not take away the authority of such officer and 'for

all purposes it is to be treated as an 'authorization' by the

'Financial Creditor'/'Operational Creditor'/'Corporate Applicant'

in favour of its officer, which can be delegated even by designation.

In such case, officer delegated with power can claim to be the

'Authorized Representative' for the purpose of filing any

application under section 7 or Section 9 or Section 10 of 'I&B

Code'.

37. As per Entry 5 & 6 (Part I) of Form No.1, 'Authorised

Representative' is required to write his name and address and

position in relation to the 'Financial Creditor'/Bank. If there is any

defect, in such case, an application under section 7 cannot be rejected and the applicant is to be granted seven days' time to

produce the Board Resolution and remove the defect.

38. 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 the 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.

39. If a plea is taken by the authorised officer that he was

authorised to sanction loan and had done so, the application under

section 7 cannot be rejected on the ground that no separate

specific authorization letter has been issued by the 'Financial

Creditor' in favour of such officer designate."

5. As noticed, in the present case the application under Section 7 has been

filed by the Deputy General Manager of the Bank, in the authorisation order it

is mentioned as Power of Attorney, but that will not change the complex of the

instrument which is an order of authorisation. In view of such position of law

the submission made by the counsel for the appellant can not be accepted.

6. Learned counsel for the appellant then referred to the impugned order and

submitted that the Adjudicating Authority has treated the 1st respondent as

'secured creditor' and has made certain observations. However, as it has no relevancy with admission of the application, we are not expressing any opinion.

We find no merit in this appeal. It is accordingly dismissed. No cost.

(Justice S.J. Mukhopadhaya) Chairperson

(Justice Bansi Lal Bhat) Member (Judicial)

bm /unni