TMI Blog2021 (4) TMI 1144X X X X Extracts X X X X X X X X Extracts X X X X ..... withdrawal under section 12A may be made to the Adjudicating Authority before the constitution of the committee, by the applicant through the interim resolution professional and after the constitution of the committee, by the applicant through the interim resolution professional or the resolution professional, as the case may be. Mere reading of the provisions shows that under Section 22(2) of the IBC, 2016, the committee of creditors, may, in the first meeting, by a majority vote of not less than sixty-six per cent of the voting share of the financial creditors, either resolve to appoint the interim resolution professional as a resolution professional or to replace the interim resolution professional by another resolution professional. Whereas under Section 27(2) there is a provision for replacement of Resolution Professional, who was appointed under Section 22, with another Resolution Professional by a vote of sixty-six per cent of voting share of the CoC. Therefore, Section 27 of the IBC, 2016 has a provision for replacement of Resolution Professional, who was appointed under Section 22 of the IBC. Hence, Section 27 is not applicable in this matter, because prayer is for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sons) Regulations, 2016 for withdrawal of Corporate Insolvency Resolution Process against the Corporate debtor. 4. The brief facts, as per averments, leading to filing of the application IA/3896/2020 are as under: i. That the application is filed by financial creditors/applicants seeking permission of the Adjudicating Authority to allow the financial creditors/applicants to file the application under section 12A of the IBC 2016 read with regulation 30A of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, for withdrawing the petition bearing No. (IB) 1781 (ND) 2018 titled as 'Ms. Indu Kumar Vs. Saha Infratech Private Limited' filed under section 7 of the IBC 2016. ii. That the Section 7 IBC 2016 application was admitted by this Adjudicating Authority vide order dt. 28.02.2020 and Mr. Arun Jain was appointed as Interim Resolution Professional (IRP). iii. It is pertinent to mention here that the claims of Indu Kumar Shraddha Kalhan have already been settled. The Corporate Debtor has undertaken to pay and settle the claim of the third applicant Mr. Sandeep Kalhan in proceedings pending before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eking withdrawal of their application under Regulation 30-A. ii. That since his appointment Mr. Arun Jain, the Interim Resolution Professional (IRP), neither commenced nor acted to further the Corporate Insolvency Resolution Process of M/s. Saha Infratech Private Limited, and thus, has not incurred any expense to the knowledge of Applicants, therefore no Bank Guarantee is required to be furnished as per sub regulation (2) of Regulation 30-A. IA/3371/2020: 6. This application is preferred on the behalf of Aashray Social Welfare Society/Financial Creditors under Rule 11 of the NCLT Rules, 2016 for appointment of an Interim Resolution Professional of the Corporate Debtor. 7. The brief facts, as per averments, leading to filing of the instant application are as under: i. That CIRP was initiated against the Corporate Debtor, Saha Infratech Private Limited vide order dated 28.02.2020 and Mr. Arun Jain was appointed as the Interim Resolution Professional of the Corporate Debtor. ii. That the Applicant Nos. 1 and 2 are also allottees of the project being developed by the Corporate Debtor. The Applicant No. 2 had even filed an independent petition under section 7 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndependent Interim Resolution Professional ( IRP ), as the IRP appointed by way of the admission Order dated 28.02.2020 - Sh. Arun Jain-has failed to take charge of the affairs of the Corporate Debtor, contrary to the provisions of the Code. The IRP has neither issue public announcement nor called for claims from creditors and as a consequence, failed to constitute the Committee of Creditors u/s. 18 of the Code. The IRP has reluctantly failed to run the Corporate Debtor as a going concern u/s. 20 of the Code. iv. That a total of 14 petitions u/s. 7 or 9 of the Code were clubbed and last listed together for hearing before the Hon'ble Principal Bench on 06.02.2020. While the aforesaid bunch of applications were pending adjudication, the Petitioners therein later realised that a solitary Petition (instant petition) was pending before this Bench wherein an admission Order has been passed. v. That the aforesaid led the Applicant and other similarly situated home-buyers to a reasonable belief that the matter was pressed by the Corporate Debtor in possible collusion with the Petitioner/Financial Creditor Indu Kumar to take refuge under the moratorium and have a favourable person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 15 of the IBC, 2016 was made by the IRP. 11. He further submitted that they also submitted Form FA to the IRP for the withdrawal of the main application but the IRP did not file the withdrawal application. 12. He further submitted in view of Regulation 30A of Insolvency Resolution Process for Corporate Persons Regulations, 2016. The IRP or RP was required to file an application within three days from the date of receipt of Form FA. 13. He further submitted that since all the three Petitioners on whose application the CIRP was initiated are presently travelling outside India, on the basis of special power of Attorney and authorization letter, the applicants have filed the present application for withdrawal of the CP(IB) No. 1781/ND/2018. He further submitted that since the IRP refused to perform his duties and so the present application has been filed. He further submitted that under such circumstances, the applicants may be permitted to withdraw the main application in terms of settlement arrived in between the parties. IA/3371/2020: 14. Ld. Counsel for the applicant, the Aashray Social Welfare Society, submitted that the applicant of this IA had filed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... below: IA/3371/2020 IA/3912/2020: The Counsel for the Applicant is present and prayed for appointment of new RP on the grounds that the IRP Mr. Arun Jain who was appointed vide Order dated 28.02.2020 of this Tribunal has failed to take charge of the Corporate Debtor. He has neither made the public announcement of the CD being under CIR Process nor formed the CoC till date. Further, it has been brought to our notice that an email dated 19th June, 2020 sent by the IRP Mr. Arun Jain to the Office of the Counsel for the Applicant has recorded that he had filed an Application before this Authority for Appointment of an alternative RP. Whereas, it does not appear that any such Application has been filed before this Authority. It appears from the conduct of the IRP Mr. Arun Jain that the Order of CIRP admission dated 28th February, 2020 passed by this Authority has been completely flouted and therefore, he should explain the reasons as to why the contempt proceeding should not be initiated against him. The IRP Mr. Arun Jain is present in person. He is directed to file a short Affidavit to explain the reasons for not initiating CIRP till date against the CD and the reasons why he c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2016. Withdrawal of application. (1) An application for withdrawal under section 12A may be made to the Adjudicating Authority: (a) before the constitution of the committee, by the applicant through the interim resolution professional; (b) after the constitution of the committee, by the applicant through the interim resolution professional or the resolution professional, as the case may be: Provided that where the application is made under clause (b) after the issue of invitation for expression of interest under regulation 36A, the applicant shall state the reasons justifying withdrawal after issue of such invitation. (2) The application under sub-regulation (1) shall be made in 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licant through the interim resolution professional and after the constitution of the committee, by the applicant through the interim resolution professional or the resolution professional, as the case may be. And the proviso says that if the application is made under clause (b) after the issue of invitation for expression of interest under regulation 36A, the applicant shall state the reasons justifying withdrawal after issue of such invitation and Regulation 30A Sub Regulation 2 says that application under sub-regulation (1) shall be made in Form FA of the Schedule accompanied by a bank guarantee towards estimated expenses incurred on or by the interim resolution professional for purposes of regulation 33 and the Form FA shows that it is the applicant, on whose application CIRP was initiated, shall fill up this application mentioning the particulars of the application, case number etc. 27. Therefore, no where either in Section 12A of the IBC nor in Regulation 30A of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, it is mentioned that the application for withdrawal may be filed by the person other than the applicant or by his authorized agent. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A of IBC, 2016. 31. At this juncture, we would like to make it clear that under Section 7 of the IBC, 2016 at the time of filing of the application, the petitioner is required to mention the name of the IRP in the application and enclose his/her consent form. Accordingly, we notice that the consent form (Form 2) was given by the IRP Mr. Arun Jain, which is at page 74 of the main petition and he was appointed IRP. Even then, Mr. Arun Jain IRP failed to perform his duties under the law and the applicants have knowingly not taken any step to file an application for his replacement. 32. Further, we observe that the applicants, who have filed the present application for withdrawal of the main petition are not the petitioners of the main Company Petition No. 1781/2018 and there is no provision under the law to permit an agent or an authorized representative to file the withdrawal application. If the intention of the legislature was to permit the authorized representative, then under Section 12A of the IBC and Regulation 30A of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, such a provision in the Section or in Regulation would have been there, cle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... form, it shall communicate its decision to the interim resolution professional, the corporate debtor and the Adjudicating Authority; or (b) to replace the interim resolution professional, it shall file an application before the Adjudicating Authority for the appointment of the proposed resolution professional along with a written consent from the proposed resolution professional in the specified form. (4) The Adjudicating Authority shall forward the name of the resolution professional proposed under clause (b) of sub-section (3) to the Board for its confirmation and shall make such appointment after confirmation by the Board. (5) Where the Board does not confirm the name of the proposed resolution professional within ten days of the receipt of the name of the proposed resolution professional, the Adjudicating Authority shall, by order, direct the interim resolution professional to continue to function as the resolution professional until such time as the Board confirms the appointment of the proposed resolution professional. Section 27: Replacement of resolution professional by committee of creditors. (1) Where, at any time during the corporate insolvency r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted fact that the CoC has not been constituted, even the public announcement as required under section 15 of IBC has not been made and the IRP has not taken the charge of the Corporate Debtor to initiate the CIR Process. 38. At this juncture, we would also like to refer to Section 16 of the IBC, 2016 which deals with the provision of appointment and tenure of the IRP and the same is quoted below:- 16-Appointment and tenure of interim resolution professional. (1) The Adjudicating Authority shall appoint an interim resolution professional on the insolvency commencement date, within fourteen days from the insolvency commencement date. (2) Where the application for corporate insolvency resolution process is made by a financial creditor or the corporate debtor, as the case may be, the resolution professional, as proposed respectively in the application under section 7 or section 10, shall be appointed as the interim resolution professional, if no disciplinary proceedings are pending against him. (3) Where the application for corporate insolvency resolution process is made by an operational creditor and- (a) no proposal for an interim resolution professional i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the reasons as to why contempt proceedings should not be initiated for flouting the order of admission of the CIRP. He was also directed to file a short Affidavit by or before 23.10.2021 to explain the reasons for not initiating CIRP against the CD and the reasons why he could not inform this Authority about the same. Mr. Arun Jain IRP neither submitted the explanation as sought for nor filed the Affidavit. All this shows that the IRP not only failed to perform the duty of initiating CIRP of the CD but also disobeyed the directions given by this Adjudicating Authority. The non-initiation of CIRP of the Corporate Debtor is a serious dereliction of duty on the part of the IRP and for which apart from the contempt proceedings, disciplinary proceeding must be initiated against the IRP. 43. We note that the other financial creditors, who are the home buyers and filed applications for the initiation of the CIRP against the Corporate Debtor could not proceed as the CIRP against the Corporate Debtor was initiated in the present petition, and therefore, in view of Section 11 of the IBC, 2016, the other applications became infrutuous. The other applicants were waiting for public announ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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