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2022 (8) TMI 837 - AT - Insolvency and BankruptcySeeking withdrawal of application admitted - OTS proposal of the Appellant accepted by the Bank or not - RP received any such communication by the Bank regarding the acceptance of OTS of the Appellant, or not - HELD THAT:- The Letter dated 16.10.2020 is the only communication which was received by the Appellant from the Bank regarding OTS Offer of the Appellant. When we read the letter dated 16.10.2020 it clearly indicates that OTS Offer dated 14.10.2020 was not accepted by the Bank rather the second paragraph of Letter clearly indicates that if the Corporate Debtor intends to settle the matter under OTS, appropriate application is to be filed by the Corporate Debtor under Section 12A of the IBC, 2016 mentioning the details of offer, source of fund, payment schedule etc. Thus the letter dated 16.10.2020 required further information as indicated in the Letter for consideration of OTS Offer - From the pleadings, it does appear that Application under Section 12A was shared by the Appellant to the RP and the Bank, but the said Application under Section 12A was never filed before the Adjudicating Authority. The Resolution Professional has stated in his Reply that he never received any acceptance from the Bank of OTS offer of the Appellant hence there was no question of filing any Application under Section 12A of the Code. Whether the minutes of Committee of Creditors dated 03rd February, 2021 indicates that OTS proposals made by the Appellant was not considered and without consideration of the OTS Proposal, CoC proceeded to approve the Resolution Plan of the Respondent No. 3? - HELD THAT:- Form-FA was never provided. It was also noted that officials of Corporate Debtor were in talk with the Bank and matter regarding the settlement was yet to be formalized through NCLT. CoC resolved that CIRP need to be continued and steps in the process need to be covered accordingly. The CoC when decided to proceed to consider the Resolution Plan at hand it is implicit the OTS Offer made by the Appellant was never accepted. Thus, withdrawal Application under Section 12A after the constitution of CoC is to be dealt in further two sub-heads. There is stringent requirement which is to be mentioned by the Appellant for withdrawal if the Application is made after the issue of invitation of EoI. In the present case, EoI was published on 15.09.2020 and even the OTS Offer made by the Appellant was after publication i.e. 14.10.2020 thus present is the case where invitation of EoI was made much earlier than OTS offer hence there has to be some reason justifying the withdrawal after issue of such invitation. Present is a case where Application under Section 12A was never filed before the Adjudicating Authority. Thus, for withdrawal, in the present facts of the case, specific reasons were required justifying withdrawal when the OTS Offer was made after publication of Form-G. There is no material to indicate that OTS Offer of the Appellant was ever accepted by the Bank. We had also noticed the Letter dated 16.10.2020 which requires certain information from the Appellant for consideration of the OTS Offer. Thus the present is a case where OTS offer of the Appellant was never accepted hence occasion to proceed under route of Section 12A did not arise. There is no error in the Order of the Adjudicating Authority - The Adjudicating Authority also did not commit any error in passing the Order dated 19th April, 2022 approving the Resolution Plan filed by the Resolution Professional - Application disposed off.
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