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2021 (2) TMI 1224 - Tri - Insolvency and BankruptcyApplication filed by IRP for withdrawal of CIRP - Filing of Form FA by IRP - Section 12A read with Regulation 30 A of I&B Code - HELD THAT:- It is admitted fact that the Operational Creditor had filed an application for initiation of the CIRP against the Corporate Debtor and on his application, the CIRP was initiated and subsequently, the CoC was constituted in which State Bank of India being the sole financial creditor is the sole member of the CoC and it is also admitted that the State Bank of India has approved the withdrawal by 100% voting. Mere plain reading of Section 12A shows that the Adjudicating Authority may allow the withdrawal application admitted under Section 7, 9 or 10 on an application made by the applicant with the approval of the 90% of the voting share of the CoC. Therefore, to file an application under Section 12A, the applicant is required to establish two elements i.e. first, the application must be filed by the applicant on whose prayer application under Section 7, 9 or 10 is admitted and secondly, it must be approved by 90% voting share of the CoC but herein the case in hand, it is admitted fact that the CoC which constitute the sole member of SBI by 100% voting approved the withdrawal. But so far the first element is concerned i.e. the application must be filed by the person on whose prayer application is admitted under Section 7, 9 or 10 is not established by the IRP/applicant of this present application and it is admitted fact that the present application has been filed by the IRP and not by the applicant. In view of Section 12A the application must be filed by the applicant whose application is admitted u/s 7 or 9 or 10 IBC and nowhere either in the IBC or the in the Regulations, it is mentioned that any person other than applicant, whose application is admitted is empowered to file an application. Of course, under the Regulations it is mentioned that the application must be filed through the IRP or the RP the case may be but it never says that the application will be filed at the instance of the Corporate Debtor or the member of the CoC if it is not duly signed or filled by the applicant, therefore, we are unable to accept the contention of the IRP that in view of the directions given by the Hon'ble NCLAT, the IRP has filed the application. The application is not filed by the applicant, on whose application CIRP is initiated therefore, the present application filed by the IRP even after the approval by the CoC by 100% voting, is not maintainable and liable to be dismissed - Application dismissed.
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