TMI Blog2020 (8) TMI 542X X X X Extracts X X X X X X X X Extracts X X X X ..... t once CoC is constituted, the Scenario changes and requirement is to settle with the other Financial Creditors and Operational Creditors and one is required to go before the CoC which may allow withdrawal with 90 per cent voting share. There is no reason why Parties cannot resort simultaneously to the window given by Hon ble Supreme Court in above Para 79. In our view when the Applicant wants to withdraw the application before Constitution of CoC, while resorting to amended Regulation 30 A, there is no bar for a party to simultaneously move Adjudicating Authority for withdrawal relying on Rule 11 of the NCLT Rules 2016. The Adjudicating Authority should receive such applications and can deal with the Applications in terms of above Para ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ettled with the original Operational Creditor soon after the Application under Section 9 was admitted on 23.10.2019 and even filed the settlement with the IRP under Regulation 30 A of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Person) Regulations, 2016 (Regulations in Short) requesting the IRP to place the settlement before the Adjudicating Authority. It is stated that the IRP asked for further ₹ 2 Lakhs claiming that it is required for closure of CIRP which the Appellant paid. It is stated that when these facts were brought to the notice of the Adjudicating Authority, the Adjudicating Authority took the same seriously and by order dated 09th December the Adjudicating Authority (NCLT Koch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Ltd. vs. Union of India 2019 SCC Online SC 73 in Para 79 and 80, Hon ble Supreme Court observed as under: 79. It is clear that once the Code gets triggered by admission of a creditor s petition under Sections 7 to 9, the proceeding that is before the Adjudicating Authority, being a collective proceeding, is a proceeding in rem. Being a proceeding in rem, it is necessary that the body which is to oversee the resolution process must be consulted before any individual corporate debtor is allowed to settle its claim. A question arises as to what is to happen before a committee of creditors is constituted (as per the timelines that are specified, a committee of creditors can be appointed at any time within 30 days from the date of appoin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion under Section 60 of the Code. For all these reasons, we are of the view that Section 12 A also passes constitutional muster. (Emphasis supplied) 5. Considering the Judgment of the Hon ble Supreme Court, it is apparent that Constitution of CoC makes a difference to the original Applicant and the Corporate Debtor in settling. Before Constitution of CoC they both can settle and withdrawal can be permitted but once CoC is constituted, the Scenario changes and requirement is to settle with the other Financial Creditors and Operational Creditors and one is required to go before the CoC which may allow withdrawal with 90 per cent voting share. 6. Subsequent to Judgment in the matter of Swiss Ribbons, the Regulations come to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CoC. 9. Regarding various grievances, Appellant is making against IRP, it would be open for the Appellant to take up the issue with IBBI. 10. For the above reasons, although we are not interfering with the Impugned Order however, we are remitting back the matter to the Adjudicating Authority. We permit the original Operational Creditor to move the CoC under Section 12A of IBC. CoC will urgently consider Form F.A. hearing the Appellant also. The IRP will cooperate in this regard. We request the CoC to urgently take a decision with regard to the request being made by the Appellant and the original Operational Creditor with regard to the withdrawal of the Application under Section 12 A of IBC one way or the other. Till the CoC takes thi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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