TMI Blog2019 (12) TMI 431X X X X Extracts X X X X X X X X Extracts X X X X ..... n the facts of each case. Thus, Adjudicating Authority has to consider all relevant factors on facts of each case and to take a decision. When the Appellant - Mr. Jai Kishan Gupta was contacted, he showed some other functional office of the Corporate Debtor where again no address of the office was found. The Adjudicating Authority did not write in so many words but exercised its discretion to hear the Financial Creditor who had already filed claims. Considering facts of the matter, we do not interfere. There are no fault with the Impugned Orders passed. Adjudicating Authority did not accept or reject the withdrawal Application - decision taken by COC in rejecting the request for withdrawal has not been challenged before the Adjudicating Authority - appeal dismissed. - Company Appeal (AT) (Ins) No.969-970 of 2019 - - - Dated:- 6-12-2019 - Mr. A.I.S. Cheema Member (Judicial), Mr. Kanthi Narahari Member (Technical) and Mr. V.P. Singh Member (Technical) For Appellant: Mrs. Tania Sharma and Ms. Shankari Mishra, Advocates For Respondents: Shri Varun Jain and Ms. Sonica Sharma, Advocates (R-1) Shri C.S. Gupta, Advocate (R-2) Shri Anirban Bhattacharya, A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his Tribunal by learned IRP appointed by this Tribunal that pursuant to the paper publication effected for receipt of claims date was fixed on 03.08.2019. Within the specified time period only the operational creditor had filed the claim and after the expiry of the said period, two claims have been received namely Reliance Commercial Finance Ltd. and another from Syndicate Bank of ₹ 20,88,675/- and ₹ 8,61,16,294.48/- respectively. Learned IRP also represents that as such no COC has been constituted and in the circumstances a settlement agreement was made available to him and this application has been filed. However, this Tribunal is of the view that notice of this application is required to be given to the Financial Creditors, in order to ascertain as to whether the said financial creditors has no objection even though the claim has been preferred after the due date mentioned in the publication issued by the IRP in the paper publication as 03.08.2019. In the circumstances let notice of this application be issued by the learned IRP to the financial creditors as given above at their respective addresses and also file an affidavit of service to this effect. Let notice be i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... voting share was yet to be decided. According to the Appellant, COC should not have been allowed to be constituted. 7. Respondent No.2, through the IRP, has filed Reply (Diary No.16103) and defended the actions of the Adjudicating Authority. The learned Counsel for the Respondent tried to submit that the Appeal against the first Impugned Order was time barred as the Appeal Memo shows that Appeal Memo was dated 16.09.2019 while the Affidavit supporting it was dated 28th August, 2019 and in the Appeal, date of refiling Appeal was 17.09.2019. This objection we dispose of right away as the record shows that the Appeal was initially presented on 28th August, 2019 and Orders passed by the Registry show that defects were raised and the Appellant was required to refile Memo of Appeal and record shows that after removal of defects, delay in refiling of the Appeal was condoned. Counsel may not have been careful while refiling. We thus do not doubt the Affidavit in support. The original date of presentation of Appeal will not shift only because some time was spent in removing objections (which has been condoned). Original filing of Appeal on 28.08.2019 is there and even Fir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to para 82 to claim that when withdrawal Application was filed by the Operational Creditor and when Form FA had been filed and COC was admittedly yet to be constituted, when First Impugned Order was passed the Adjudicating Authority should have allowed the withdrawal. The learned Counsel for the Corporate Debtor /RP submitted that what the Hon ble Supreme Court has directed is that when such withdrawal Application is filed, the Adjudicating Authority would have discretion to permit or not to permit the withdrawal and in the present matter, the Adjudicating Authority, considering the claims of Financial Creditor which had already been received, (though after the prescribed date) called for their no objections and Reliance Commercial Finance Ltd. did raise objections and in the second Impugned Order, the matter was referred to COC. 11. In the Judgement of Swiss Ribbons, Hon ble Supreme Court (in para 81) referred to the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 (Regulations in short) and dealing with Regulation 30-A, relating to withdrawal of Application the Hon ble Supreme Court referred to its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Form FA of the Schedule accompanied by a bank guarantee- (a) towards estimated expenses incurred on or by the interim resolution professional for purposes of regulation 33, till the date of filing of the application under clause (a) of sub-regulation (1); or (b) towards estimated expenses incurred for purposes of clauses (aa), (ab), (c) and (d) of regulation 31, till the date of filing of the application under clause (b) of sub-regulation (1). (3) Where an application for withdrawal is under clause (a) of sub-regulation (1), the interim resolution professional shall submit the application to the Adjudicating Authority on behalf of the applicant, within three days of its receipt. (4) Where an application for withdrawal is under clause (b) of sub-regulation (1), the committee shall consider the application, within seven days of its receipt. (5) Where the application referred to in sub-regulation (4) is approved by the committee with ninety percent voting share, the resolution professional shall submit such application along with the approval of the committee, to the Adjudicating Authority on behalf of the applicant, within three days of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en that if COC arbitrarily rejects a just settlement and/or withdrawal claim the NCLT, and thereafter NCLAT can set aside such decisions under Section 60 of the Code. 14. The Counsel for Appellant has raised dispute that on 22nd August, 2019, the Adjudicating Authority wrongly observed that COC has been constituted. The basis for such claim is that the IRP on next day of 23 rd August, 2019 sent e-mail (Page 282) that meeting of the first COC has been fixed for 29th August, 2019. The observation of the Adjudicating Authority shows that the IRP had made the statement before the Adjudicating Authority that in the meantime, COC has also been constituted, after receiving the claims. We need not decide if or not as on 22.08.2019 COC was already constituted. Nothing much will turn on this dispute as admittedly on 9th August, 2019, when already Application for withdrawal had been moved, COC was admittedly yet not constituted. But, however, as the Judgement of the Hon ble Supreme Court shows the Adjudicating Authority itself has a discretion to accept or not to accept a withdrawal. In the given set of facts, the learned Adjudicating Authority on 9th August, 2019 (the first Impug ..... X X X X Extracts X X X X X X X X Extracts X X X X
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