TMI Blog2020 (5) TMI 323X X X X Extracts X X X X X X X X Extracts X X X X ..... deserves to be allowed, hence, it is allowed in terms of its prayer clause. Consequently, the CIRP initiated in respect of the Corporate Debtor Company vide our order dated 25-11-2019 is hereby recalled and moratorium declared shall cease to have effects. Application allowed. - I.A. NO. 20 OF 2020, C.P. (IB) NO.463/9/NCLT/AHM/2018 - - - Dated:- 22-1-2020 - Harihar Prakesh Chaturvedi, Judicial Member And Prasanta Kumar Mohanty, Technical Member For the Appellant : Tirth Nayak, Adv. For the Respondent : Kurven K. Desai, Adv. ORDER HARIHAR PRAKASH CHATURVEDI, JUDICIAL MEMBER The present I.A. has been filed by the Interim Resolution Professional, (as appointed by this Bench vide its order dated 25-11-2019) under section 12A read with Section 60(5) of the Insolvency and Bankruptcy Code, 2016. The applicant I.R.P. has sought for following relief: (i) To re call the order dated 25-11-2019 passed by this Tribunal in Company Petition (IB) No. 463 of 2019 and to permit the Petitioner/Operational Creditor to withdraw the said Company Petition. 2. The brief facts of the case as narrated in the present I.A. are that the Petitioner/Operational Creditor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present application is moved by the present Applicant/I.R.P. 8. The relevant provision of section 12A of the I.B. Code reads as under: The adjudicating Authority may allow the withdrawal of application admitted under section 7 or section 9 or Section 10, on an application made by the applicant with the approval of ninety per cent voting share of the Committee of Creditors, in such manner as maybe specified. 9. Since, in the present matter, the CoC is not reported to have been constituted till the date of settlement i.e. dated 26-12-2019 arrived at between the Operational Creditor and the Corporate Debtor we, being Adjudicating Authority place reliance on the decision of Hon'ble Supreme Court in the matter of Swiss Ribbons (P.) Ltd. v. Union of India [2019] 101 taxmann.com 389/152 SCL 365 where, their Lordships have pleased to observe that the Petitioner/Operational/Financial Creditor at any stage can withdraw the I.B. Petition and recall the CIRP initiated in respect of the Corporate Debtor. The relevant Para of the aforesaid decision is reproduced herein below: We make it clear that, at any stage, where the Committee of Creditor is not yet constituted, a par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in C.P. (LB.) No. 463/9/NCLT/AHM/2018 is allowed. Prasanta Kumar Mohanty, Technical Member - The IA 20/2020 in CP(IB)No.463/9/2018 is filed by the IRP Shri Sumit Shah for approval of withdrawal of CIRP process which was commenced on 25/01/2019. While perusing this IA along with original petition and other related papers, it is observed that: 1. Prabhakar Processors Private Limited filed a petition against Sachidanand Industries on 17/09/2018 for initiation of CIRP for the default amount of ₹ 16.06 lakh invoice value + Interest of ₹ 10.70 lakh (Total ₹ 26.76 lakhs) 2. 26/09/2018 - Case was first listed before this Adjudicating Authority on 26/09/2018 and the Adjudicating Authority directed the Registry to issue notice to the Respondent Accordingly Registry issued notice to the Respondent on 28/09/2018 which was returned undelivered with the noting of Post Office that Address is insufficient. Petitioner Lawyer Shri Vivek B. Gupta was present. Matter is posted to 12/11/2018. 3. 12/11/2018 - Petitioner Lawyer present but Lawyer Mr. Jeet Sanghvi appeared and undertook to file Vakalatnama on behalf of the Respondent. 4. 14/12/2018- Petitioner Lawyer wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion order of Adjudicating Authority in CP(IB) No. 463 of 2018 (wrongly written 463 of 2019) and (ii) permit the Operational Creditor to withdraw the said company petition as because the Respondent paid ₹ 30,40,602.00 by way of pay order on the Sutex Co-operation Bank after deducting Tax at 10% of ₹ 1,59,397.00 (Total ₹ 32,00,000) against the claim of ₹ 26.76 lakh i.e. Principal ₹ 16.06 lakh and Interest ₹ 10.70 lakh. While perusing the papers, documents submitted by the Operational Creditor and IRP for approval of withdrawal of CIRP, the following serious points are observed. 1. Petitioner/Operational Creditor Prabhakar Processor Private Limited initiated CIRP against the Corporate Debtor Shree Sachidanand Industries, Surat, the reason is not known when Operational Creditor has not supplied any goods or services to the Corporate Debtor then how the Operational Creditor has filed petition against that Corporate Debtor. 2. Operational Creditor has been claiming the amount for the JOB CHARGES . It is not clarified what job they have done as claimed, as because the invoices of 2015 enclosed in support of their claim is typed out as supply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dings against the Corporate Debtor based on such invoices which are not even in the name of the Corporate Debtor is a severe abuse of process of law and this petition is required to be dismissed with heavy costs. (vi) In light of the aforesaid submissions, it is humbly prayed that this Hon'ble Adjudicating Authority be pleased to dismiss the insolvency petition with costs. As observed the Corporate Debtor has never acknowledged receipt of any goods or services given to them by the petitioner or received any reported Job Work from the Operational Creditor. 9. The Respondent has never appeared before this adjudicating Authority nor any Vakalatnama is available on record for any counsel to appear for them. 10. Petition is admitted on 25/11/2019 and IRP appointed. The Respondent Company reported that they were shocked to come to know on 20/12/2019, when they received a call from IRP. Till that time, they were not aware about the proceedings carried out at NCLT, Ahmedabad Bench. 11. The Petitioner has enclosed a copy of a cheque issued by SUNITA CREATION cheque No. 935663 dated 15/10/2015 in favour them for ₹ 1,17,768.00 which clearly shows that SUNITA CREATION ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.00 with Registry till the disposal of the I A, as mentioned in Page Nos. 1 to 8, it is required to be referred to the President, NCLT for Constitution of Bench to peruse the documents, following issues and dispose of the petition thereafter. 1. There is no relation between with the Operational Creditor and Corporate Debtor as the invoice raised is on some proprietorship firm. Then how the application under section 9 of IBC has been admitted, CIRP started, moratorium declared in respect of the reported Corporate Debtor. 2. The Operational Creditor reports that, it has claimed the default amount for Job Charges whereas the invoice enclosed is for supply of Micro D Print. It is apparently fake bill/invoice. 3. Invoices enclosed by Operational Creditor is on a Proprietorship Firm. Why those invoices are enclosed with the petition and amount claimed from the Corporate Debtor on that basis. It is apparently an attempt to drag the Corporate Debtor into this Tribunal through this petition. 4. Corporate Debtor has never appeared before this Tribunal. No notice has been served from the NCLT and Notice sent to the Corporate Debtor by the NCLT returned undelivered as becaus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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