TMI Blog2019 (4) TMI 594X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of Section 12-A of the Code stipulates that settlement can be made with 90% voting of the members of the CoC, which is not practically possible in the present case, being sole member who can accept or reject the proposal by 100% voting only. The interest of the Financial Creditor, being a sole member of the CoC, can adequately be taken care of while making such observation that the present settlement in no manner shall affect the rights and the claim of the sole Financial Creditor or any other creditor to agitate the same before a competent Court of Law including this Adjudicating Authority under the relevant provisions of the Code. The Operational Creditor has moved the present application, by settling its dues for an amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the petition by declaring Moratorium, in respect of the Corporate Debtor company, viz. M/s. Jason Decor Pvt. Ltd. and appointed the Interim Resolution Professional (IRP). 2. However, subsequent to appointment of the IRP but prior to constitution of Committee of Creditors (CoC), the present application is moved before this Adjudicating Authority, as it is filed on 04.02.2019, seeking withdrawal of the IB Petition and to recall the Corporate Insolvency Resolution Process (CIRP) before constitution of CoC under the provisions of Section 12-A of the Code. 3. The applicant, in support of this application, has placed reliance on a judgment of the Hon ble Supreme Court in the matter of Swiss Ribbons v. Union of India (Writ Petition (Civi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge even without seeking consent of the CoC and its members. 5. The Petitioner, in support of its case, has further placed reliance on another decision of Hon ble NCLAT in the matter of Ashish Garodia v. Impact Event Management in Company Appeal (AT) (Insolvency) No.67 of 2019, wherein Their Lordships have been pleased to permit withdrawal of a IB Petition at post admission stage by observe as such; 4. In spite of service of notice, the Interim Resolution Professional has not appeared but it is informed that the Committee of Creditors has been constituted on 5th February, 2019, i.e. after issuance of the notice to the parties. 5. Having heard learned counsel for the parties and taking into consideration the fact that there is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the present application by reporting that meeting of the CoC was already proposed to be convened on 19.02.2019, wherein the Sole Member of the CoC, i.e. Indian Overseas Bank (IOB), would participate as its claim is much higher than the claim of the present applicant, being an Operational Creditor of the present IB Petition. 8. We duly considered the above stated submission of the IRP. It is now undisputed position in the matter that the present application for settlement was filed on 04.02.2019 before this Adjudicating Authority, which is prior to the constitution of the CoC. That apart, it is pertinent to note here that there is sole member in the CoC i.e. IOB, who may or may not give its consent for such withdrawal of the IB Petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is expedient to issue necessary direction to the Petitioner-Operational Creditor as well as to the Corporate Debtor company to bear the expenses and cost of the CIRP, which has been incurred by the present IRP, towards payment of his professional fees and other expenses incurred, which shall be prerequisite for approval of the present settlement. Therefore, the Petitioner as well as Corporate Debtor company is directed to pay fee of ₹ 50,000/- (Rupees Fifty Thousand) to the IRP along with actual amount of necessary expenses incurred by the IRP to initiate the CIRP, i.e. public announcement - paper publication, administrative expenses, etc. 12. The amount of the above stated cost will be payable to the IRP within two weeks from the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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