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TMI Blog2021 (9) TMI 196X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondent No. 1. Mr. Sanjay Kapur, Mr. V M Kannan, Ms. Shubhra Kapur, and Mr. Arjun Bhatia, Advocates for Respondent No. 2. Dr. Laxhmi Narashimha, Advocate for RP. JUDGMENT Jarat Kumar Jain: J. The Appellant "Mr. K. Srinivas Krishna" Suspended Director of Corporate Debtor has filed this Appeal against the order dated 18th February, 2021 passed by the Adjudicating Authority (National Company Law Tribunal) New Delhi, Bench-V in I.A. No. 4639/2020 and in I.A. No. 5317/2020 in (IB) No. 295(ND)/2019 whereby dismissed the application filed u/s 12A of 'IBC' read with Regulation 30A of Insolvency & Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 (Regulations) filed by Mr. Shyam Arora, IRP Respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oting share and IRP was authorized to do necessary acts in this regard. 5. Pursuant to the said resolution of CoC, the Interim Resolution Professional filed an application in I.A. No. 4639 of 2020 u/s 12A read with Regulation 30A of the Regulations. In response of the said Application the Operational Creditor has raised some objections. Therefore, the IRP has filed another Application I.A.No. 5317 of 2020 for clarification of the objections raised by the Operational Creditor. 6. The IRP stated that the objections raised by the Operational Creditor are that (i) the IRP has not considered Operational Creditor's claim in entirety (ii) the application filed in contravention of Section 12A read with Regulations 30A of the Regulations and ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he response of Axis Bank was not received. 11. The Ld. Adjudicating Authority after considering the objections raised by the Operational Creditor rejected the application on the ground that the application u/s 12A is not filed by the Applicant(OC) on whose application CIRP was initiated. Therefore, the application is dismissed as not maintainable. 12. Being aggrieved with this order, the Suspended Director of the 'Corporate Debtor' Company has filed this Appeal seeking relief that the impugned order may be set aside. 13. Ld. Counsel for the Appellant submitted that the Corporate Debtor has paid the admitted amount to the Operational Creditor and the claim of Rs. 50,32,028/- was not supported with documents, therefore, IRP has not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m of the Operational Creditor, therefore, continuance of CIRP is misused the process when the resolution has already been came to an end. It is settled law that the Operational Creditor cannot use the CIRP as a recovery mechanism as held by the Hon'ble Supreme Court in the case of Mobilox Innovations Pvt. Ltd. Vs. Kirusa Software Pvt. Ltd. 2018 (1) SCC 3533. 16. Ld. Counsel for the Appellant submitted that the Adjudicating Authority rejected the withdrawal application on the hyper technical ground that the same has not been signed by the Operational Creditor. Particularly, when after satisfying admitted claim of the Operational Creditor nothing survives in the CIRP. The Operational Creditor has acted with malafide and has refused to signed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bhan Venkatesh reported in 2020 (11) SCC 467. Ld. Counsel for the Respondent No. 3 further submitted that this Appellate Tribunal in CA (AT) (Ins) No. 205 of 2020 held that the claim for Rs. 50,32,028/- is not maintainable, against that order the Respondent has filed the Civil Appeal No. 1689 of 2021 which is pending before the Hon'ble Supreme Court. 19. It is submitted that language of Section 12A of the IBC is clear that the Applicant who has filed Application under Section 7, 9 or 10 alone can file withdrawal application then there is no scope to add something and interpret that the IRP can file the Application for withdrawal. The facts of the case of Brilliant Alloys (Supra) are totally distinguishable from the facts of the present cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 of the IBC by 100% voting share and IRP was directed to do necessary acts in this regard. 22. it is admitted fact that this Appellate Tribunal held in CA (AT) (Ins) No. 205 of 2020 vide order dated 25.09.2020 that the claim of Rs. 50,32,028/- is not maintainable against that order the Operational Creditor has filed Civil Appeal No. 1689 of 2021 before the Hon'ble Supreme Court challenging the observations made by this Appellate Tribunal. Hon'ble Supreme court vide order dated 09.08.2021 has dismissed the Appeal. Thus, it is finally decided by the Hon'ble Supreme Court that the claim of Rs. 50,32,028/- is not maintainable under Section 9 of the IBC application. The Operational Creditor has not signed form FA solely on the ground that its ..... X X X X Extracts X X X X X X X X Extracts X X X X
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