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2019 (5) TMI 1584 - Tri - Insolvency and BankruptcyWithdrawal of petition - whether an Applicant who has filed a petition u/s 10 is entitled to withdraw its own petition u/s 12A of the Code, especially when the said applicant has furnished the impugned Petition(CP 1362/2018) and now offering a onetime settlement as a Director in the suspended management of the Debtor Company? HELD THAT:- Section 12A is inserted w.e.f. 06.06.2018 which prescribes that the Adjudicating Authority may allow the withdrawal of application admitted either u/s 7 or u/s 9 or u/s 10, on an application made by the Applicant with the approval of 90% voting share of the CoC. The first reaction during the course of hearing of this Bench was that how it is justifiable on the part of an applicant who has moved a Petition u/s 10 to declare itself insolvent (as happened in this case) at one point of time and thereafter at a later stage suo-moto seeking permission for withdrawal of the said Petition? It has also been questioned that in this manner the procedure laid down in the provisions of the IBC may be wrongly utilized? How a person can be allowed to play with the precious time of a Court by moving a Petition with the prayer to commence CIRP and at the fag end of the process seeking permission of withdrawal of the said Petition? But, the answer is simple and single that the Code has now subscribed such procedure through which withdrawal is possible in respect of a petition filed u/s 10 of the Code. The condition subscribed is that “on an Application made by the Applicant” withdrawal can be allowed, if approved by 90% voting share of the CoC. On this point, the Applicant has clarified that as a Director of the Debtor Company the said Application u/s 10 was signed by him and now he is the signatory of this withdrawal application, hence qualified. Provisions of section 10 are unambiguous – where a corporate debtor has committed a default, a corporate applicant thereof may file an application for initiating CIRP with the AA. The term “corporate applicant” is defined u/s 5 of ‘Definitions’ of IBC, means a member of the corporate debtor company who is authorized to make an application for CIRP under the constitutional document of the Corporate Debtor or a person who has the control and supervision over the financial affairs of the Corporate Debtor - In the present case an admitted position is that Mr. Satyanarayan Malu is the person who has control and supervision over the financial affairs of the Corporate Debtor. It has also been clarified that he is one of the directors in the Board of the Corporate Debtor as well as duly authorized to act on behalf of the company. At the time when the Petition u/s 10 was filed, he was the signatory and now also signed this withdrawal application. This Application is submitted on 21.08.2018 by the Resolution Professional for approval of the Resolution Plan as prescribed u/s. 31(1) of The Insolvency Code - no adjudication under the provisions of The Code is now required because this Resolution Plan has become redundant.
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