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2022 (5) TMI 579 - NATIONAL COMPANY LAW TRIBUNAL , AMARAVATI BENCHSeeking to withdraw the Application - settlement between the parties and the amount under settlement has been paid, inspite of which the Respondent No. 1/Operational Creditor is not coming forward to file an Applicant - Section 12A of IBC - HELD THAT:- The inherent powers can be exercised to meet the ends of justice in an application which is maintainable under the provisions of the Code and to prevent an abuse of process of the Tribunal involved in deciding such application. A settlement presupposes a consensus between the parties entering into a settlement. If from the inception of the settlement, one of the parties proceeds with an element of cheating in its mind, it cannot be termed as a settlement. Section 12A permits withdrawal of the application only if there is an agreed settlement between the parties. Since the Application under Section 9 of IBC is filed by Respondent No. 1 and since withdrawal of an Application can be done only by a person who filed it, it implies that the Applicant referred to in Section 12A would only be the Operational Creditor or the Financial Creditor as the case may be. It is true that after having induced Respondent No. 2 to pay the entire claim amount, it would not be in the interest of fairness to put forth the plea of interest. But at the same time this Tribunal cannot direct Respondent No. 1 to act on the draft settlement deed which is not yet signed by the parties by considering the correspondence between the parties and Respondent No. 1 cannot be asked to forgo the above mentioned interest or to file a suit or proceeding for recovery of the same - taking into consideration the events presented before this Tribunal and by relying on what the NCLAT has done in the case of BHASKAR BISWAS VERSUS M/S. DEVI TRADING & HOLDING PVT. LTD. & ANR. [2019 (8) TMI 1731 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI], the Applicant is allowed to approach the Operational Creditor as sought for by them, for having further talks on the matter and with regard to the interest for the above mentioned period and Respondent No. 1 may consider the proposal that would be made by the Applicant with regard to the same and in the interest of fairness, consider withdrawing the Application. Application disposed off.
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