Page 812 - IBC Orders us 7-CA Mukesh Mohan

Order Passed under Sec 7
By Hon’ble NCLT New Delhi-II Bench
copy of the said circular has been placed on record. Consequently, the head office of the applicant bank

conveyed permission of the competent authority on 17.04.2017 for referring the case to the Tribunal for
resolution in respect of the respondent corporate debtor. Accordingly, the specific authorization to file
application under section 7 of the Code in favour of Mr. O.P. Arora, Chief Manager of the applicant bank,

was accorded on 10.08.2017 which reads as follows:

"The permission for initiating action under the Insolvency and Bankruptcy Code, 2016 against M/s.

Carnation Auto India Pvt. Ltd. has been received from the Competent Authority. You are hereby
permitted to sign, file, and verify the Application under the Insolvency and Bankruptcy Code, 2016

against M/s. Carnation Auto India Pvt. Ltd. on behalf of Bank immediately and submit further report from
time to time."

13. From a perusal of the aforesaid letter it has been clear that the representative of Applicant Bank was
specifically authorized to file this application under the Code before the Tribunal. Needless to say that it
is for the financial creditor either to initiate insolvency resolution process or not. Therefore the aforesaid

objection raised by the respondent corporate debtor cannot sustain.

14. It is also the case of the respondent that the debt claimed by the Applicant Bank is not due and

payable as on date and no default in terms of Section 3(12) of the Code exists in the present case. It is
submitted that the amount claimed by the Applicant Bank in the instant case is a disputed amount and a
counter claim has been filed by the respondent corporate debtor before DRT and therefore, in the absence

of adjudication of the quantum of default, the instant application under Section 7 of the Code is legally
not tenable and liable to be dismissed.

15. In this respect, it is seen that loan was sanctioned to the corporate debtor by the Applicant Bank and
the account of corporate debtor has been declared NPA due to non-payment of amount. The applicant has
filed the relevant statement of accounts duly certified under Banker's Books Evidence Act, 1891. The

certified copy of statement of account kept during course of banking business basing on which the claim
has been raised can be termed as sufficient evidence of financial debt. The applicant has also furnished

Balance Confirmation letter executed by respondent on 25.03.2015 in respect of the loan facilities. The
financial creditor has placed on record overwhelming evidence to prove the default. The material on
record clearly goes to show that the respondent corporate debtor has committed default in repayment of

the loan amount.

16. The Tribunal is not an adjudicating authority to ascertain the quantum of amount of default or to pass

decree as to how much is actually due to the applicant financial creditor. The Code requires the

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