TMI Blog2021 (10) TMI 937X X X X Extracts X X X X X X X X Extracts X X X X ..... f IBC, 2016 and also on the ground that said Application has been filed by the Operational Creditor on 01.04.2021 without settling the amount which is due and payable by the Operational Creditor. This Tribunal is of the considered view that the Constitution of the CoC by the IRP on 12.04.2021 cannot be termed as 'illegal' or 'unconstitutional', since as 12.04.2021, there was no stay which was in operation. Hence, the constitution of the CoC by the IRP on 12.04.2021 does not suffer from any legal infirmities. It is required to be noted here that the Hon'ble NCLAT had given only 10 days time to file an Application under Section 12A of IBC, 2016 before the Adjudicating Authority and the Operational Creditor and the Corporate Debtor ought to have settled the matter within the stipulated time period. Since the CoC has been constituted by the IRP and the same is in vogue, the Application filed by both the Operational Creditor and the Corporate Debtor under Section 12A of IBC, 2016 without soliciting the requisite 90% approval from the CoC, is not maintainable. It is seen that the IRP has not violated any of the Order passed by this Tribunal or by Appellate T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned in regulation 30A of IBC, 2016 memo of settlement attached. c) May kindly pass any such further order or orders, as this Hon'ble Tribunal may deem fit and proper under the facts and circumstances of this case and thus render justice. 3. The Operational Creditor had filed IBA/938/2019 before this Tribunal seeking initiation of CIRP as against the Corporate Debtor. This Tribunal vide its order dated 24.02.2021 initiated the CIRP as against the Corporate Debtor and appointed one Mr. Asokan Nagarajan, the 2nd Respondent herein as IRP. Aggrieved by the said order the Corporate Debtor had filed an Appeal before the Hon'ble NCLAT in Company Appeal (AT)(Ins) No. 24 of 2021 and the Hon'ble NCLAT while its order dated 26.03.2021 has passed the following Order; Heard the Learned Counsel appearing for the Appellant. 2. The Learned Counsel for the Appellant seeks permission from this Tribunal' to withdraw the instant Company Appeal in Comp.App(AT)(CH)(Ins) No. 24 of 2021 and accordingly permission is granted to withdraw the same. Based on the permission being granted to withdraw the present Appeal, the Comp.App(AT)(CH)(Ins) No. 24 of 2021, is dismissed as w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ranted to withdraw the same. Based on the permission being granted to withdraw the present Appeal, the Comp.App (AT) (CH) (Ins) No. 24 of 2021, is dismissed as withdrawn. No costs. 3. However, this Tribunal grants liberty to the 'Appellant/Corporate Debtor' to file an 'Application under Section 12A of the 'Insolvency Bankruptcy Code' before the 'Adjudicating Authority'(National Company Law Tribunal, Division Bench - 1, Chennai) within 10 days from today and to seek redressal of its grievances if it so desires/advised. 4. It is made clear that in the event of the 'Appellant'/'Corporate Debtor' filing of the 12A withdrawal Application under 'Insolvency Bankruptcy Code', 2016, within the time granted, the same shall be taken on file by the 'Adjudicating Authority' (National Company Law Tribunal, Division Bench - I, Chennai) and to dispose of the same as expeditiously as possible, of course in accordance with Law. Till the time granted within which the 'Appellant'/'Corporate Debtor' files a withdrawal Application under Section 12A of the Insolvency Bankruptcy Code, 2016, the 'Constitution of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Tribunal is not required to entertain this Application under Section 12A of IBC, 2016. In the circumstances, taking into consideration all these representations made by the parties and it is also required to be noted that in the meanwhile as represented by the IRP upon the constitution of CoC, one of the Members of the CoC who has lodged a claim being the Financial Creditor is also represented by its Counsel and the Application, is being opposed filed under Section 12A as filed by the Applicant/Corporate Debtor. Taking into consideration all these representations we are of the view that in relation to Paragraph Nos. 3 and 4, the Applicant is required to approach before the Hon'ble NCLAT seeking for clarification. Let the same be done by the Applicant as expeditiously as possible. In the meanwhile, the IRP is directed not to precipitate the CIR process any further until suitable clarifications is obtained from the Hon'ble NCLAT, in this regard . 5. Subsequent to the above order passed by this Tribunal, it is seen that the Corporate Debtor has filed a clarification Application before the NCLAT vide IA/95/2021 in Company Appeal (AT) (Ins) No. 24 of 2021 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, by following lawful procedure. (13) With the above said observations and directions, the IA No. 95 of 2021 in Company Appeal (AT) (Insolvency) No. 24 of 2021 stands disposed of. No costs. 6. Thereafter, it is seen that the Operational Creditor had filed IA/601/CHE/2021 before this Tribunal on 24.06.2021 stating that the matter has been settled between the parties, however the IRP refused to sign in the Form-FA and it is also alleged in the said Application that the IRP had constituted the CoC in violation of the Order passed by Hon'ble NCLAT and also by this Tribunal. Under such circumstances, the Applicant/Corporate Debtor has moved IA/601/CHE/2021 to direct the IRP to expedite and sign in the Form-FA and consequently withdraw the CIRP in relation the Corporate Debtor. 7. Heard the submissions by the Learned Counsel for both the parties. From the sequence of facts as has been elucidated above, the issue which is required to be decided in the present case is that whether the constitution of the CoC by the IRP has been done in violation of the Orders passed by the this Tribunal and also by the Appellate Tribunal. The second issue, which is required to be decided, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the ground that the Corporate Debtor cannot directly file an Application under section 12A of IBC, 2016 and also on the ground that said Application has been filed by the Operational Creditor on 01.04.2021 without settling the amount which is due and payable by the Operational Creditor. While this being the fact, this Tribunal is of the considered view that the Constitution of the CoC by the IRP on 12.04.2021 cannot be termed as 'illegal' or 'unconstitutional', since as 12.04.2021, there was no stay which was in operation. Hence, we are of the view that the constitution of the CoC by the IRP on 12.04.2021 does not suffer from any legal infirmities. 13. Further, it is also required to be noted that when the Application filed by the Operational Creditor under section 12A was taken up for hearing, one of Financial Creditors of the Corporate Debtor viz. Axis Bank has raised an objection in relation to the present Application and it was contended that the settlement proposal which has been arrived between the parties had been done after the constitution of CoC and hence the same ought to have been placed before the CoC and should have garnered 90% approval from th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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