TMI Blog2021 (11) TMI 904X X X X Extracts X X X X X X X X Extracts X X X X ..... he CIRP was initiated. However, in the present case we notice that even the Sole Member/Operational Creditor of the CoC has been shirking from the responsibility and not pursuing the CIR Process of the Corporate Debtor - As per the Code, if any person [as defined under Section 3(23) of IBC] initiates the Insolvency Resolution Process fraudulently or with malicious intent for any purpose other than for the resolution of the insolvency, or liquidation, such an act is punishable under Section 65(1) of IBC 2016. Hence, before taking any action under Section 65(1) IBC 2016, we think it proper to issue a show cause notice, under Rule 59 of the National Company Law Tribunal Rules 2016, on the Operational Creditor M/s. Om Logistics Ltd. through its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plicant has made the following prayers in the Application under consideration: a. Close the CIRP initiated action against M/s. Ryder India Private Limited/CD. b. Consider dissolution of M/s. Ryder India Private Limited/CD, if found just and reasonable. c. Discharge the Applicant/IRP from the responsibility of IRP. d. Pass such further and other order and directions as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the matter. 3. As submitted, the facts of the case in brief are that the Operational Creditor (OC), M/s. Om Logistics Ltd. had filed an application bearing No. IB-1742(ND)/2019 under Section 9 of IBC 2016 in this Tribunal for initiation of CIR Process against the Corporate Debt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he First meeting of CoC was convened on 23.12.2019, where M/s. Om Logistics Ltd. did not attend the meeting and ETO Bahadurgarh abstained itself from voting. Therefore, no decision could be taken in the meeting. 9. It is added by the Applicant that again on 10.01.2020 during the Second Meeting of CoC due to absence of M/s. Om Logistics Ltd. and non-voting by ETO Bahadurgarh no decision was taken. 10. It is further added by the Applicant that the Applicant convened the third meeting of the CoC on 20.01.2020. It is further stated that neither the members of the CoC nor the Ex-Directors attended the meeting. It is added that in terms of Regulation 22(2) of IBBI (Insolvency Resolution Process of Corporate Persons) Regulations 2016, the me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the property and filed the following report: 14. It is stated by the Applicant that he could not recover any record from the premises of the Corporate Debtor and found one notice board of Pentagon Shoe (India) Private Limited displayed with the name of Mr. Brij Mohan Garg (Advocate) on the top of the sign board. 15. It is further stated by the Applicant that the Ex-Director Mr. Rohtash Kumar Rohit handed over to him the Letter No. SARB/DSB/9730/209 dated 19.06.2019 regarding the one-time settlement with the SBI, Najafgarh Road, New Delhi and re-payment thereunder issued to the Corporate Debtor by the State Bank of India, copy of which is reproduced below: 16. It is added by the Applicant that the Ex-Director Mr. Roht ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f IBC, 2016. The contents of the Section 12A are reproduced below: 12A. Withdrawal of application admitted under Section 7, 9 or 10 The Adjudicating Authority may allow the withdrawal of application admitted under section 7 or section 9 or section 10, on an application made by the applicant with the approval of ninety per cent voting share of the committee of creditors, in such manner as may be specified. 20. The aforesaid sequence of events shows that the intention of the Operational Creditor i.e., M/s. Om Logistics Ltd., at whose instance the CIR Process was initiated, was not for the resolution of Insolvency. Instead, the Operational Creditor has used this forum for recovery and got the CIR process kickstarted with malicious i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mbers of CoC to attend the meeting and pursue the CIR Process. In a similar situation, when the CoC was not interested in pursuing the CIR Process, this Adjudicating Authority has terminated the CIR Process in the matter of M/s. Surendra Steels Sales Vs. M/s. Immortal Buildcon Pvt. Ltd., (IB)-1152(ND)2019 dated on 07.01.2020. The relevant extract of the said order is reproduced below: ...The IRP has submitted that he has been meeting expenses from his own pocket. Pursuant to the publication, no other claim was received. It is submitted that the first meeting has been held while the second meeting has been postponed a few times, at the instances of the Operational Creditor/CoC on grounds of a possible settlement with the Corporate Debtor ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
