TMI Blog2021 (6) TMI 572X X X X Extracts X X X X X X X X Extracts X X X X ..... but from the material available on record, it is crystal clear, that claim of the financial creditor and other creditors (Operational Creditors) were received prior to the submission of the Form FA and as per the averment made in the application, the IRP instead of verifying the claims of the creditors, had waited for settlement, which was going to be arrived between the applicant and Corporate Debtor. Which in our considered view is not the letter and spirit of Section 12A and Regulation 30A of the IBBI (Insolvency Resolution of Corporate Persons) Regulation, 2016 as well as the decisions upon which the applicant has placed reliance - Since, the IRP has received a claim of one of the financial creditor, which is more than One Crore. Therefore, it is the duty of the IRP; before considering the Form FA, verify the claim and if the claim is found to be genuine then constitute the CoC and if the claim is not genuine then reject the same. Since, before the submission of Form FA, there was a claim of more than One Crore of the financial creditor, under such circumstances, there are no option but to reject the application submitted by the IRP to permit the applicant to withdraw the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A, the Operational Creditor has also stated that the Corporate Debtor on behalf of the Operational Creditors (being part of the Consent Terms signed between the Operational Creditor and the Corporate Debtor on 20.02.2021) has provided Demand Drafts towards the full amount towards the professional fees of the Interim Resolution Professional and the reimbursement of expenses as per the details provided by the IRP vide email dated 20.02.2021. The Applicant confirms that the said Demand Drafts have been received by him towards payment of his full fees and reimbursement of expenses, which form part of CIRP costs. The operational Creditor and the suspended Director of the Corporate Debtor had also assured the Applicant/IRP to reimburse all/or any other cost which might incur in future. 7. The details of the estimated and incurred CIRP costs and the details of the Cheque/Demand Drafts received thereto are as below: 8. The Applicant/IRP had at present is in a process of receiving claims from the creditors and no Committee of Creditors has been constituted as on the date of filing of this application. 9. Hence, on receipt of the said Form FA on 20.02.2021, the Applicant within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licant on whose application the CIRP (Corporate Insolvency Resolution Process) was initiated. 13. He further submitted that as per Regulation 13(1) of IBBI (Insolvency Resolution of Corporate Persons) Regulation, 2016, the verification of claims was required to be made within seven days from the last date of the receipt of the claims. Since, the last date of the receipt of the claims was 19.02.2021, therefore, due date for verification of the claims was 26.02.2021. 14. He further submitted that prior to the constitution of the CoC, the Form FA for withdrawal of the application has been submitted by the operational creditor. Therefore, the CoC was not constituted. 15. He further submitted that as per Regulation 30A(3) of the IBBI (Insolvency Resolution of Corporate Persons) Regulation, 2016, the IRP (Insolvency Resolution Professional) is required to submit the application to the Adjudicating Authority on behalf of the applicant within three days from the date of receipt of Form FA. Therefore, the IRP has filed this application on 22.02.2021. 16. He also placed reliance upon the decision of Hon'ble Supreme Court in the matter of Swiss Ribbon Pvt. Ltd. Vs. Union of In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observed that: 6.......... In our view when the Applicant wants to withdraw the application before Constitution of CoC, while resorting to amended Regulation 30A, there is no bar for a party to simultaneously move Adjudicating Authority for withdrawal relying on Rule 11 of the NCLT Rules 2016 in view of Right given in the Judgment of Hon'ble Supreme Court. The Adjudicating Authority should receive such applications and can deal with the Applications in terms of above Para 79 while it may await response from IRP. 3. The Hon'ble NCLAT vide order dated 30.01.2020 in Company Appeal (AT) (Insolvency) No. 105 of 2020 in the matter of Mr. K.C. Sanjeev vs. Easwara Pillai Kesavan Nair in para 8 13 of the order had observed that: 8. Taking into consideration the fact that the Appellant has already settled the matter with the 2nd Respondent - ('M/s. Tirupati Timber Packaging Limited' - 'Operational Creditor') much prior to the constitution of the 'Committee of Creditors' and two demand drafts have also been handed over on 9th January, 2020 and the 'Interim Resolution Professional' also accepted that the 'Committee of Creditors' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Form FA with a prayer to withdraw the Company Petition. 21. We further notice that when in course of hearing, it came to the notice of the Adjudicating Authority then vide order dated 01.04.2021, the Adjudicating Authority directed the IRP to provide the details of the claims received by him on or before the date of Form FA and accordingly, an affidavit was filed by the IRP on 07.04.2021. 22. We further notice that it is mentioned in the affidavit filed on 07.04.2021, the name of the persons, the amounts claimed by the persons and the date on which, the claims were submitted and on perusal of that, we notice that before the submission of Form FA, the applicant/IRP had received six (6) claims. Out of six, one claim is of ₹ 1,53,98,419/- was submitted by the Impact Sare Magnum Township Private Limited, who is the financial creditor and remaining five (5) claims were submitted by the employees as an operational creditor. 23. We further notice, the applicant has taken a plea for not constituting the CoC after receiving the claims i.e. as per Regulation 13(1) of the IBBI (Insolvency Resolution of Corporate Persons) Regulation, 2016, the verification of the claims can b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .01.2019 held that committee of creditors can be appointed at any time within 30 days from the date of appointment of the interim resolution professional but herein the case in hand, the IRP was appointed on 04.02.2021. Therefore, the decision upon which the applicant has placed reliance, according to that, the applicant can constitute the CoC within 30 days from the date of his appointment. Similarly, as per Regulation 13(1) of the IBBI (Insolvency Resolution of Corporate Persons) Regulation, 2016, the verification could have been made before the expiry of the period of 7 days. 27. We further notice that in the synopsis of this application, it is mentioned that he has received an information from the Corporate Debtor that the Operational Creditor had approached them for settlement of outstanding dues and it appears to the Bench, that is the reason; the applicant had not taken up any step to verify the claim submitted by the claimants and constitute the CoC. Rather he had waited for the settlement. 28. At this juncture, we would like to refer Section 12A and Regulation 30A of the IBBI (Insolvency Resolution of Corporate Persons) Regulation, 2016 and the same is quoted below:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication submitted under subregulation (3) or (5). (7) Where the application is approved under sub-regulation (6), the applicant shall deposit an amount, towards the actual expenses incurred for the purposes referred to in clause (a) or clause (b) of sub-regulation (2) till the date of approval by the Adjudicating Authority, as determined by the interim resolution professional or resolution professional, as the case may be, within three days of such approval, in the bank account of the corporate debtor, failing which the bank guarantee received under sub-regulation (2) shall be invoked, without prejudice to any other action permissible against the applicant under the Code. . 29. Mere plain reading of the provisions shows that as per Section 12A, the Adjudicating Authority may allow the withdrawal application admitted under Section 7, 9 or 10 on an application made by the applicant with the approval of the 90% of the voting share of the CoC. Therefore, to file an application under Section 12A, the applicant is required to establish two elements i.e. first, the application must be filed by the applicant on whose prayer application under Section 7, 9 or 10 is admitted and s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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