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2019 (6) TMI 1457 - HC - Companies LawMaintainability of petition - case of the petitioner is that the petitioner who is Time Sharing Member of the corporate debtor was initially treated as a class and financial creditor with total claim of ₹ 82,28,68,000/- with voting share at 5.90% by the IPR in its first report to COC dated 29.05.2019 - HELD THAT:- When the IRP has considered petitioner as financial creditor, it was obligatory for the IRP to invite representation of the Time Sharing Members to the first meeting of COC, which from the minutes does not appear to have been done and with one opinion of the Advocate to consider Time Sharing Members as financial creditors, nothing is coming on record as to what necessitated the IRP to call for second opinion of the Advocate. The Court at this stage would not like to go elaborately into the issue when the application of the C/SCA/10629/2019 ORDER petitioner under Section 60 is filed. In the instant case, on one hand, application is filed and pending whereas on the other hand, if the COC is permitted to proceed further, it may amount to frustrating the legitimate right of a creditor, more so in the instant case where the IRP has itself in its report has treated Time Sharing Members as financial creditors and gave voting share. Thereafter, without giving opportunity of hearing to the petitioner, cannot suo motu treat them as corporate creditors to take away whatever right is available to them in their capacity as financial creditors. This issue which precisely is to be decided by the NCLT in the application filed by the petitioner - This Court is therefore of the opinion that the COC meeting cannot be permitted to be proceeded unless petitioner is given a fair chance to get his grievance adjudicated by the NCLT. It is appropriate to direct the petitioner to complete formalities in connection with application under Section 60 of the Code - petition disposed off.
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