TMI Blog2021 (9) TMI 196X X X X Extracts X X X X X X X X Extracts X X X X ..... not file Application under Section 12A of the IBC. No cause of action survives in favour of the Operational Creditor to proceed with CIRP - the matter is remitted back to the Ld. Adjudicating Authority to decide the fees and costs of CIRP payable to IRP which shall be borne by the Corporate Debtor. Appeal allowed by way of remand. - Company Appeal (AT) (Insolvency) No. 221 of 2021 - - - Dated:- 2-9-2021 - [Justice Jarat Kumar Jain] Member (Judicial) And [Dr. Ashok Kumar Mishra] Member (Technical) For the Appellant : Mr. P Nagesh, Sr. Advocate with Mr. Srinivas Kotni, Mr. Shantam Gorwara, Advocates and Mr. Srinivas Krishna, in person. For the Respondents : Mr. Shyam Arora, Respondent No. 1 in person, Mr. Sharad Tyagi, Mr. K. Gayatri, Advocates for 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) Ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal 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 (iii) form FA has been filed wrongly by the IRP. (iv) The IRP has not taken into consideration the claim of 'Axis Bank' while constituting the CoC. In response, the IRP submitted that the Operational Creditor had two claims one for ₹ 50,32,028/- and another claim for ₹ 3,67,200/-. 7. The Adjudicating Authority vide order dated 23rd January, 2020 had accepted only one claim of the OC for ₹ 3,67,200/- and directed that the other claim to be examined by the IRP. The IRP had examined the claim of ₹ 50,32,028/- and found the claim not to be in order. It is also stated that this Appellate Tribunal in CA (AT) (Ins.) No. 205/2020 vide order dated 25.09.2020 observed that the said claim is not maintainable. 8. It is also stated that the form FA is an Application for withdrawal of CIRP. Such form should be signed by the Applicant (Operational Creditor), the IRP had sent the email dated 17th October, 2020 to the Operational Creditor for his signing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es cannot defeat the very purpose of the statute and hence, this Appellate Tribunal shall act in compliance with the same and allow the Appeal. 15. Ld. Counsel for the Appellant submitted that the Operational Creditor has refused to sign the FA form on the basis of its illegal claim which is rejected by this Appellate Tribunal and the Corporate Debtor has already satisfied the admitted claim 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 form FA. Hence, the Adjudicating Authority should h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tely gone through the record and considered the submissions advanced by the Ld. Counsel for the parties. 21. It is admitted fact that the Operational Creditor has filed Application under Section 9 against the Corporate Debtor for two claims one of ₹ 50,32,028/- and another claim for ₹ 3,67,200/-. The amount of ₹ 3,67,200.- has been paid to the Operational Creditor. The IRP has not admitted the another claim as it is not supported by any reliable documentary evidence. Against that rejection the Operational Creditor has filed I.A. No. 3874 of 2020 before the Adjudicating Authority. It is also admitted fact that CIRP admission order has been challenged by the suspended director by way of CA (AT) (Ins) No. 205 of 2020 before this Appellate Tribunal, while deciding the Appeal, this Appellate Tribunal observed that the claim of ₹ 50,32,028/- is not tenable and vide order dated 25.09.2020 the Appeal was disposed of and the IRP was directed to take further action with regard to CIRP. Thereafter, the CoC was constituted by the IRP on 05.10.2020 with the sole claim of Financial Creditor viz State Bank of India for ₹ 12,66,000/-. Subsequently, the Corporate De ..... X X X X Extracts X X X X X X X X Extracts X X X X
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