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2021 (10) TMI 937 - Tri - Insolvency and BankruptcySeeking withdrawal of application filed under section 9 of IBC, 2016 by filing the FORM-FA which is not accepted - whether the constitution of the CoC by the IRP has been done in violation of the Orders passed by the this Tribunal and also by the Appellate Tribunal? - whether the Application filed under section 12A of IBC, 2016 is required to be allowed? - HELD THAT:- The Corporate Debtor has averred in the Application that since the account of the Corporate Debtor was under the control of the IRP, they could not do any transactions and the amount was settled to the Operational Creditor only through the associate entity of the Corporate Debtor - it is significant to point out here that even though the Corporate Debtor has filed an Application under section 12A of IBC, 2016 before this Tribunal, the same was not accompanied with Form-FA and also there was some serious objections being raised by the Operational Creditor on the ground that the Corporate Debtor cannot directly file an Application under section 12A of IBC, 2016 and also on the ground that said Application has been filed by the Operational Creditor on 01.04.2021 without settling the amount which is due and payable by the Operational Creditor. This Tribunal is of the considered view that the Constitution of the CoC by the IRP on 12.04.2021 cannot be termed as 'illegal' or 'unconstitutional', since as 12.04.2021, there was no stay which was in operation. Hence, the constitution of the CoC by the IRP on 12.04.2021 does not suffer from any legal infirmities. It is required to be noted here that the Hon'ble NCLAT had given only 10 days time to file an Application under Section 12A of IBC, 2016 before the Adjudicating Authority and the Operational Creditor and the Corporate Debtor ought to have settled the matter within the stipulated time period. Since the CoC has been constituted by the IRP and the same is in vogue, the Application filed by both the Operational Creditor and the Corporate Debtor under Section 12A of IBC, 2016 without soliciting the requisite 90% approval from the CoC, is not maintainable. It is seen that the IRP has not violated any of the Order passed by this Tribunal or by Appellate Tribunal in constituting the CoC - Application dismissed.
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