TMI Blog2021 (2) TMI 882X X X X Extracts X X X X X X X X Extracts X X X X ..... has ever been filed by the Interim Resolution Professional before the Adjudicating Authority, rather this IA has been filed by the assignee of financial creditor. As is evident from the records, since CoC has already been constituted in this case, any application for withdrawal of CIRP has to comply with regulation 30A (1) (b) of CIRP regulations read with Section 12 A of IBC-2016. Application dismissed. - IA No. 1198/MB/C-IV/2020, CP No. 3049/MB/C-IV/2019 - - - Dated:- 16-12-2020 - Rajesh Sharma, Technical Member And Mrs. Suchitra Kanuparthi, Judicial Member For the Applicant : Rohit Gupta, Rubina Khan and Nidhi Bajpai, Advs. For the Respondent : Rohan Savant and Ms. Krupa Joshi ORDER RAJESH SHARMA, TECHNICAL MEMBER. - 1. This court convened through video conferencing today. 2. This Interlocutory Application has been filed by CFM Assets Reconstruction Private Limited , the Applicant/Assignee under section 60(5) and section 12A of Insolvency Bankruptcy Code, 2016 (I B Code) against Mr. Vishram Narayan Panchpor, Interim Resolution Professional for seeking indulgence and challenging the action of IRP, of not filing the application of withdrawa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Assignment Agreement dated 21-8-2020 along with Form FA and demand draft of ₹ 3,00,000.00. Further, on 27-8-2020, the Applicant has delivered by hand delivery, the said letter dated 26-8-2020 along with the original Form FA and Demand Draft. The acknowledgement of said delivery is annexed at pp.77-80, Exhibit 'IX' of IA. The Applicant stated that the Applicant has duly complied with the provisions the Code and the Regulation by requesting the IRP before constitution of CoC, to file an application for withdrawal of CIRP proceedings, within 3 days of receipt of Form FA, as per term Regulation 30A(1)(a) and 30A(3) of the CIRP Regulations. (g) Then after, the Applicant received a letter from IRP vide email contending that since the Applicant (Assignee) is not an Applicant in the captioned petition, the Form FA cannot be filed by the IRP. The IRP also informed in the said letter that since the CoC has been constituted and the report has also been filed before this Tribunal on 27-8-2020. (h) The Applicant submitted that the last date of submission of claim was 19-8-2020 and the last date for verification of claims was on 26-8-2020 (i.e. with 7 days from the last da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had assigned the debt in respect of Corporate Debtor in favour of the Applicant. (e) The IRP has confirmed the email dated 25-8-2020 sent by the Applicant which is annexed at p.61, Exhibit 'V' of reply and the response thereto which is at pp.62-63, Exhibit 'VI' of IA filed by the Applicant. The IRP has also confirmed the detailed reply sent to the Applicant vide email dated 26-8-2020 which annexed atpp.64-69 Exhibit 'VII' of IA filed by the Applicant and also annexed at pp.65-70, Exhibit 'D' of the reply filed by the IRP. (f) The IRP notified to the Applicant about the constitution of CoC vide its email dated 27-8-2020 and on 28-8-2020, the IRP was served with a copy of the Interlocutory Application filed by the Applicant. (g) On 2-9-2020, the Applicant sent an email to the IRP which is annexed at pp.88-90, Exhibit 'H' stating that the CoC constituted by IRP is incomplete and the Applicant as the Financial Creditor has not been included. Further, the Applicant stated that the Applicant is in the process to submit its claim and the same is delayed due to some unavoidable reasons which are beyond control. The IRP replied to the said em ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stamped which makes the same unenforceable in law. The Respondent No. 2 relied upon the Judgment laid down in the case of Garware Wall Ropes Ltd. v. Coastal Marine Construction and Engineering Ltd. [Civil Appeal No. 3631 of 2019, dated 10-4-2019] : 16. A close look at section 11(6A) would show that when the Supreme Court or High Court considers an application under section 11(4) to 11(6), and comes across an arbitration clause in an agreement or conveyance which is unstamped, it is enjoyed by the provisions of the Indian Stamp Act to first impound the agreement or conveyance and see that stamp duty and penalty (if any) is paid before the agreement, as a whole, can be acted upon. It is important to remember that the Indian Stamp Act applies to the agreement or conveyance as a whole. Therefore, it is not possible to bifurcate the arbitration clause contained in such agreement or conveyance so as to give it an independent existence, as has been contended for by the respondent. 19. When on arbitration clause is contained in a contract , it is significant that the agreement only becomes a contract if it is enforceable by law. We have seen how, under the Indian Stamp Act, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st get itself substituted to be recognized as an Applicant in the place of original Petitioner. In fact, as per Regulation 28, the IRP/RP has to inform this Tribunal regarding the Assignment. (f) The withdrawal of the Petition on earlier occasion will not impact this withdrawal. It was discretion of the Tribunal as contemplated in the Judgment of Swiss Ribbon, which was prior to the amendment coming into force. There was no provision for withdrawal before constitution of CoC. (g) Section 5(1A) of the SARFAESI Act, 2002 provides clear exemption on payment of stamp duty on assignment of debt under the provision of section 5(1) of SARFAESI Act, 2002. Under the Registration Act, time provided to register the documents is more than 3 months which in the present case did not elapse when the IRP admitted the claim of Applicant or when the Applicant sought for withdrawal of the Petition. Hence, no registration of the said Assignment Agreement required at that time. The Agreement is now registered which is a prima facie proof that the document is properly stamped. (h) The debt which assigned and the debt is defined the section 2(h)(a) of SARFAESI Act, 2002 and section 2(g) of Recov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egulations, or Rule 11 of NCLT Rules. ii. Relief being sought to direct RP to act upon Form FA. However, if Form FA is to be acted upon today, it would have to compulsorily be put up before the CoC for voting. iii. No relief sought by the Applicant for admission to CoC as member. Thus, no desire to participate in the CIRP of the Corporate Debtor. (c) The Hon'ble Supreme Court has discussed the concept of withdrawal for proceedings under section 12A on the IBC in the Judgment in Swiss Ribbons v. Union of India [2019] 152 SCL 365 [para 52-53 as on page 100], as: 52. 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 day ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itution of the CoC. This is apparent from the fact that in both Regulations 30A (3) and in Regulation 30A (4); the word used is shall . It is clear that if the conditions of Regulation 30A(1)(a) and (2) are fulfilled, the IRP shall submit the application to the Adjudicating Authority, within three days of its receipt . Similarly, if the conditions of Regulation 30A(1)(b) are fulfilled, the committee shall consider the application, within seven days of its receipt . (b) Hence, there is no statutory or regulatory preference to either a pre-CoC constitution withdrawal under section 12A or a post-CoC constitution withdrawal. The plain language of Regulation 30A demonstrates that an Applicant is entitled to seek withdrawal under section 12A either pre or post CoC constitution. (c) The contention that there is nothing which precludes a CoC constitution in the three days contemplated by Regulation 30A(3) is based on will render the provisions of Regulation 30A(1)(a) otiose and nugatory. It would lead to an absurd outcome. The present case is demonstrative of the consequence of such an interpretation. The Form FA was submitted to the IRP on 26-8-2020. If a withdrawal application w ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
