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2019 (7) TMI 217 - Tri - Insolvency and BankruptcyPermission to withdraw the Corporate Insolvency Resolution Process (CIRP) - Corporate Debtor - HELD THAT:- Regulation 30(A) provides that “an application for withdrawal under Section 12A shall be submitted to the interim resolution professional or the resolution professional, as the case may be, in Form FA of the Schedule before the issue of invitation for expression of interest under regulation 36A”. The regulation further provides that if the application is approved by the CoC with 90% vote share, the Resolution Professional shall submit the application under sub-regulation (1) to the Adjudicating Authority on behalf of the applicant, within three days of such approval. Further Regulation provides that adjudicating authority may, by order, approve the application submitted under sub-regulation (4). The use of the word “may” in Sec. 12A of the Code indicates that, if an application is filed under Section 12A, and CoC approves it with 90 per cent voting share, then the Adjudicating Authority may allow the withdrawal application, in such manner as specified. Section 12A of the Code stipulates that the Adjudicating Authority has the discretion to accept or reject the application, filed under Section 12A, provided that application is made by the applicant with the approval of 90% vote share of the CoC - Regulation 30A of CIRP Regulations, 2016 provides the procedure by which application under Section 12A can be filed. Regulation 30A provides that application under Section 12A should be filed in Form FA before issuance of an invitation for expression of interest. Since section 29A of the Code specifically prohibits a wilful defaulter to submit a Resolution Plan. In this case, admittedly promoters of the Corporate Debtor are a wilful defaulter, and therefore. they are not eligible to submit a Resolution Plan as per section 29A. The resolution for withdrawal of CIRP did not obtain the required percentage of voting by the members of CoC, i.e. 90% at the first instance. Subsequently, a CoC meeting was conducted, and a resolution was voted upon for reconsideration of the withdrawal. The RP/CoC has not quoted the exact provision that empowers them to again put for the voting of the resolution which was earlier defeated.
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