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2019 (1) TMI 1681 - Tri - Insolvency and BankruptcyInitiation of CIRP - Winding up of company - Approval of Resolution plan - suppression of material facts by the Corporate Applicant, without disclosing that the company has been wound up by order of the Hon’ble High Court - HELD THAT:- It is clear that IDBI Bank, a Member of Financial Creditor had initiated the winding up proceedings against the Corporate Debtor, bearing CP No.26 of 2013. IDBI Bank has stated that the Corporate Debtor was fully aware of the winding up proceedings and despite that Corporate Debtor filed proceedings under section 10 without disclosing that the winding up order has already been passed by the Hon’ble High Court against and the company has been wound up. The Official Liquidator had been directed by the Hon’ble High Court to proceed with the procedure of winding up expeditiously. It is further stated in the Affidavit of IDBI Bank that before the 2nd COC meeting dated 17.11.2017 the IDBI Bank vide email 16.11.2017 intimated to the RP about the winding up order of the Hon'ble High Court dated 25.1.2017 - On perusal of the minutes of CoC, it appears that the Financial Creditor IDBI Bank has informed the CoC about the order dated 25.1.2017 passed by the Hon’ble High Court liquidating the Corporate Debtor. Given the provision of Sec 11(d) of the IB Code the corporate debtor was not entitled to make an application for initiation of Corporate Insolvency Process U/S 10 of the I & B Code. But the corporate debtor has filed the petition U/S 10 of the code, after suppressing material facts that the company was wound up by the order dated 25.1.2017 of the Hon’ble High Court. After liquidation order passed in a winding-up petition against the corporate debtor then it is barred from filing a petition under section 10 of the Code. Here the corporate debtor has not only suppressed the material fact that the winding up petition has not only been filed and admitted, but liquidation order has also been passed against the corporate applicant/corporate debtor liquidator has been directed to expedite liquidation proceedings expeditiously. The corporate applicant suppressed this material fact, knowing it to be material, and filed the petition under section 10 and in contravention of Rule 10 of Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. The alleged act of the corporate applicant is punishable under section 77 (a) of the Insolvency and Bankruptcy Code 2016. The Registrar of Companies, Mumbai is directed to lodge prosecution against the corporate applicant under section 77(a) of the insolvency and bankruptcy code in 2016 - Since the petition has been filed under section 10 of the Insolvency and Bankruptcy Code 2016 after the suppression of the material facts, which were known to be material, therefore the petition is rejected with cost ₹ 10 lakhs which shall be paid by the Corporate Applicant. The cost will be deposited in the account of the Prime Ministers National Relief Fund.
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