TMI Blog2019 (7) TMI 1713X X X X Extracts X X X X X X X X Extracts X X X X ..... is not at all tenable and liable to be rejected. And the Adjudicating Authority is empowered to permit any Applicant to file an Application U/s 12-A of the Code and can consider it. Application is allowed by permitting the Applicant to withdraw the main Company Petition - Company petition is dismissed. - IA No. 244/2019 in CP(IB) No. 46/BB/2018 - - - Dated:- 17-7-2019 - Rajeswara Rao Vittanala, Member (J) And Dr. Ashok Kumar Mishra, Member (T) For Appearing Parties : Raghuram Cadambi, Sunita Srinivas and Abhijit Atur, Ravi Sankar Devarakonda ORDER Rajeswara Rao Vittanala, Member (J) 1. I.A.No. 244/2019 in C.P. (IB)No. 46/BB/2018 is filed by The Committee of Creditors (Applicant'), U/s. 12A and 60(5) of the IBC, 2016, R/w Rule 30A of IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, R/w Rule 11 and 34 of the NCLT Rules, 2016, by inter alia seeking for withdrawal of the instant Company Petition and consequently dismiss it. 2. Brief facts of the case, which are relevant to the issue in question are as follows: - (1) C.P. (IB)No. 46/BB/2018 is filed by Mr. John Varghese (Petitioner/Financial Creditor) U/s. 7 of the Code, R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7.2019 drawn on HDFC Bank, Richmond Road Branch, Bangalore for a sum of ₹ 90,29,491/- (Rupees Ninety Lakhs Twenty Nine Thousand Four Hundred and Ninety one only) in favour of Mr. John Varghese with this Tribunal to the Petitioner/Financial Creditor. However, the Petitioner refused to accept the same and thus cheque is deposited with the Registrar of Tribunal. 3. The Application is strongly opposed by the Financial Creditor/Petitioner of the CP, by inter alia contending the authorisation has given to Shri Sridhar Chinni on behalf of the Committee of Creditor is not in accordance with law; it is alleged that HDFC Ltd., has connived with the Promoter of the Corporate Debtor and has raised false allegations against the initiation of the CIRP and also against the Petitioner. As per law, the Application U/s. 12-A of the Code, has to be filed through IRP/RP with the consent of Petitioner of the main Company Petition, and thus the instant Application for withdrawal is not maintainable. And he is interested in continuation of CIRP rather than accepting the cheque for admitted amount of ₹ 90,29,491/- 4. Heard Shri Raghuram Cadambi, learned Counsel for the Applicant (HDFC L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case passed on 10.01.2019, Shri Koshy Varghese, Promoter/Managing Director of the Corporate Debtor, has filed an Company Appeal (AT) (Insolvency) No. 696 of 2019 before Hon'ble NCLAT, New Delhi, by inter alia contending that he was ready to pay the admitted dues to the Respondent/Financial Creditor and also filed an Application U/s. 12-A by HDFC Ltd., and other Home Buyers before this Adjudicating Authority. However, the Hon'ble NCLAT, while dismissing the said appeal vide order dated 10.07.2019, on the ground of delay, has inter alia observed that there would be fresh cause of action to the Appellant, if the Application filed U/s. 12-A was not entertained by the Adjudicating Authority. 9. The main points for consideration are whether Section 12-A Application can be filed by the largest Creditor of the Committee of Creditors, and whether requisite 90% is fulfilled or not. As stated supra, the Tribunal permitted the HDFC Ltd., and Home Buyers to file an Application for the reasons stated in the IA.No. 90/2019 and that order became final as it was not questioned. Therefore, the instant Application can be filed by COC. So far as the second question i.e. with regard to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the judgment that warrants restricting it to cases of employment. The rule of rounding off was held to be based on logic and common sense. We do not read the observations as being limited to any particular kind of case. Rounding off therefore, is a rule in the absence of anything to the contrary. If the rules or other provisions specifically provide otherwise, it would be a different matter. In the absence of such a provision, the rule of rounding off must be applied . 13. Faced with this Mr. Kulkarni submitted that the rule of rounding off ought to be limited only to the case of employment and admissions to academic courses. Here again, he was unable to indicate any reason why the rule ought to be so restricted . 14. The rule of rounding off recognised by the Supreme Court and by the Division Bench of this Court in the above cases applies equally to cases such as these. Therefore, the facts and circumstances in the instant case fully justify to round off from 89.85% to 90%. 11. Even at the time of admission of the case, the Respondent has expressed willingness to repay the admitted balance amount of ₹ 63,80,000 and ₹ 26,60,000 amounting to S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Finance and Investment Managers LLP (2018) 15 SCC 589; Mothers Pride Dairy India (P) Ltd. Vs. Portrait Advertising and Marketing (P) Ltd. (2017 SCC OnLine SC 1789; Uttara Foods and Feeds (P) Ltd. Vs. Mona Pharmachem (2018) 15 SCC 587. This Practice was deliberated in light of the objective of the Code as encapsulated in the BLRC Report, that the design of the Code is based on ensuring that all key stakeholders will participate to collectively assess viability. The law must ensure that all creditors who have the capability and the willingness to restructure their liabilities must be part of the negotiation process. The liabilities of all creditors who are not part of the negotiation process must also be met in any negotiated solution . Thus, it was agreed that once CIRP is initiated, it is no longer a proceeding only between the applicant creditor and the Corporate Debtor but is envisaged to be a proceedings involving all creditors of the debtoRs. The intent of the Code is to discourage individual actions for enforcement and settlement to the exclusion of the general benefit of all creditoRs. 29.2 On a review of the multiple NCLT and NCLAT judgments in this regard, the consist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in exceptional cases even after issue of invitation for expression of interest under Regulation 36-A. 82. It is clear that once the Code gets triggered by admission of a creditor's petition under Sections 7 to 9, the proceedings that is before the adjudicating authority, being a collective proceedings, is a proceedings 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 appointment of the interim resolution professional), we make it clear that at any stage where the Committee of Creditors is not yet constituted, a party can approach NCLT directly, which Tribunal may, in exercise of its inherent powers under Rule 11 of NCLT Rules, 2016, allow or disallow an application for withdrawal or settlement. This will be decided after hearing all the parties concerned and considering all relevant factors on the facts of each ..... X X X X Extracts X X X X X X X X Extracts X X X X
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