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2020 (12) TMI 287 - NATIONAL COMPANY LAW TRIBUNAL , AHMEDABAD BENCHMaintainability of petition - Section 241-242 of the Companies Act, 2013 - whether upon admission of the insolvency application against the Company, the pending application under Section 241-242 r.w. Section 62, 75, 447, 448 and 449 of the Companies Act would be rendered infructuous or would be kept in abeyance till the conclusion of the CIRP? - HELD THAT:- It is a matter of record that one IB Petition filed under Section 7 of the IB Code is admitted on 16.03.2020 against M/s. Polygold Pre-cured Systems Pvt. Ltd. and accordingly the management is suspended and is vested upon IRP for all intent and purposes - Thus, when the Corporate Debtor is under CIRP, under such circumstances, the dispute with regard to the oppression and mismanagement cannot be dealt with as the management itself is suspended and now the Company is under the control of IRP/RP. Once it is admitted under IB Code initiating CIRP, which may end, either in approval of a resolution plan or an order for liquidation of the Corporate Debtor. Thus, under both situation, the management will never come again in the hands of the Suspended Management. Further, the decision to approve a resolution plan or to send the Company for liquidation rests with the commercial wisdom of the COC, which consists of the FCs as voting members. The commercial decision of the COC are not generally open to any analysis, evaluation or judicial review by the Adjudicating Authority. Even if the petition filed under Section 241-242 is kept in abeyance, then even it is not going to fulfil the objective of Section 241-242 of the Companies Act. Therefore, there is no reason for keeping the application filed under Section 241-242 be pending till the final outcome of the IB petition - Application dismissed.
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