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TMI Blog2021 (10) TMI 937X X X X Extracts X X X X X X X X Extracts X X X X ..... cts and circumstances of this case and thus render justice. 2. IA/601/CHE/2021 is an Application filed before this Tribunal on 24.06.2021 by M/s. Akzo Nobel Industrial Chemicals BV, (hereinafter referred as "1st Respondent/Operational Creditor) who had triggered the Corporate Insolvency Resolution Process (CIRP) in relation to the Corporate Debtor; the Application is being filed under Section 12A of Insolvency and Bankruptcy Code, 2016 r/w Regulation 30A of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons), Regulations, 2019 seeking reliefs as follows: a) That the Operational Creditor is desirous to withdraw the application filed under section 9 of IBC, 2016 by filing the FORM-FA which is not accepted and taken into consideration by the IRP Mr. N. Asokan as per the Regulation 30A of the Insolvency & Bankruptcy Code, 2016 for withdrawal. Appropriate directions may kindly be given to the Learned IRP Mr. N. Asokan. b) That Corporate Debtor i.e., Oren Hydrocarbons Pvt. Ltd., admitted and has consented for payment of all appropriate and verified fee as well as cost of the Learned IRP Mr. N. Asokan prior to this settlement However, ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstitution of Committee of Creditors' shall be stayed, if not already constituted. 5. IA No. 55 of 2021, IA No. 56 of 2021 and IA No. 57 of 2021 are closed. However, the 'Appellant'/'Corporate Debtor' is directed to file Certified Copy of the 'Impugned Order' within two weeks from Today. 4. Thereafter, it is seen that the Corporate Debtor, based upon the Order passed by the Hon'ble NCLAT has moved IA/298/CHE/2021 before this Tribunal under section 12A of IBC, 2016 and when the said IA was taken up for hearing by this Tribunal on 15.04.2021, the following order was passed; "Learned Counsel for Applicant Mr. A. Muraleedharan, Learned Counsel for Respondent Mr. F.S. Dhiman and Learned IRP Mr. Ashokan Nagarajan are present through video conferencing platform. Learned Counsel for Applicant brings to the notice of this Tribunal an order passed by the Hon'ble NCLAT in Company Appeal (AT) (CH) (Insolvency) No. 24 of 2021 dated 26.03.2021 (arising out of order dated 24.02.2021 in IBA/938/2019 passed by this Bench) and since the order is brief and concise, material portion of the same is reproduced as below:- "2. The Learned Counsel for the Appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earance before the Hon'ble NCLAT, while this order was passed. However, it is further contended by Learned Counsel for Operational Creditor that taking into consideration Paragraph No. 4 of the decision of the Hon'ble NCLAT wherein it has been specifically stated that the 12A Application may be filed and is required to be disposed of in accordance with Law. However, Section 12A r/w Regulation 30 (A) of IBBI (IRCP Regulations) states that it is only the IRP, who is required to move this Application under Section 12A of IBC, 2016 upon consent being expressed for such withdrawal to be also lodged with the IRP in the prescribed Form namely Form 'FA' by the Operational Creditor and only pursuant to the same, an Application under Section 12A of IBC, 2016 can be moved before this Tribunal seeking for withdrawal of the Petition and thereby the CIR process and in the present case it is pointed out by Learned Counsel for the Operational Creditor/1st Respondent that the Application has been moved by the Corporate Debtor directly itself even without satisfying the debt which is due to the Operational Creditor and without obtaining the consent in Form 'FA' as prescribed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 is relevant for 'Withdrawal of Application". (11) Be it noted, that 'Withdrawal of Application' as per Regulation 30A of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 should be submitted to the 'Interim Resolution Professional" or the 'Resolution Professional' as the case may be in Form-FA of the schedule, etc., (12) Be that as it may, in view of the fact that this 'Tribunal' on 26.03.2021 in Company Appeal (AT)(CH)(Ins) No. 24 of 2021 at paragraph 4 had clearly stated that 'in the event of Appellant/Corporate Debtor' filing the Section 12A 'Withdrawal Application' under the I&B Code, 2016, within the time granted, the same shall be taken on file by the 'Adjudicating Authority' (National Company Law Tribunal, Division Bench Court-I, Chennai) and to dispose of the same as expeditiously as possible, of course, in accordance with Law', the said observation is 'self-explanatory' and it is for the 'Adjudicating Authority' (National Company Law Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on filed by the Corporate Debtor under Section 12A of IBC, 2016 and also in view of the fact that the Corporate Debtor had not settled the matter with the Operational Creditor, the IRP has constituted the Committee of Creditors on 12.04.2021. At this juncture, it is required to be noted from the averments made in the Application filed by the Operational Creditor, viz. IA/601/CHE/2021, it is stated that the Corporate Debtor has paid the amount due to the Operational Creditor only on 26.04.2021, i.e. after the constitution of the CoC Thus, it could be seen by the time when the Corporate Debtor had settled the matter with the Operational Creditor, the CoC in respect of the Corporate Debtor was already in existence. 11. The Corporate Debtor has averred in the Application that since the account of the Corporate Debtor was under the control of the IRP, they could not do any transactions and the amount was settled to the Operational Creditor only through the associate entity of the Corporate Debtor. 12. However, it is significant to point out here that even though the Corporate Debtor has filed an Application under section 12A of IBC, 2016 before this Tribunal, the same was not accompan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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