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TMI Blog2021 (2) TMI 1224X X X X Extracts X X X X X X X X Extracts X X X X ..... n short are as under: i. That vide order dated 23.01.2020 this Adjudicating Authority has initiated CIRP against the Corporate Debtor and the applicant Shyam Arora was appointed as the Interim Resolution Professional ("IRP"). ii. Further, against the aforesaid order an appeal was filed by Mr. K. Srinivas Krishna (Suspended Director) before the Hon'ble NCLAT under Company Appeal No. 205 of 2020. iii. That on 03.02.2020 the Hon'ble NCLAT granted an interim stay on the constitution of CoC and advised the Appellant and Operational Creditor to settle the matter. iv. That the Hon'ble NCLAT in that appeal on 25.09.2020 passed an order and in Para No. 20 of the order stated that it is not found and tenable the claim of Rs. 50,32,028/- filed by the Operational Creditor in terms of Section 8 and 9 of the Code. In addition, in para 23 of the said order an amount of Rs. 3,67,200/- has been paid by the Operational Creditor which settles the claim amount of the Operational Creditor fully and there are no dues to the Operational Creditor, therefore, disposing of the appeal and also the claim of the Operational Creditor and the interim stay passed by the Hon'ble NCLAT was v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Form FA has been filed wrongly by the IRP. D. The IRP has not taken into consideration the claim of the Axis Bank while constituting the COC ii. That the IRP submits the response to the aforesaid objections in the following manner: A. That as far as the claim of the Operational Creditor is concerned, the Operational Creditor had two claims. One is of Rs. 50,32,028/- and the other for Rs. 3,67,200/-. the Adjudicating Authority vide order dated 23.01.2020 while allowing CIRP order of the Corporate Debtor vide para 31 and para 37 had accepted only one claim of the Operational Creditor for Rs. 3,67,200 and directed that the other claim to be examined by the IRP vide para 33. The IRP had examined the claim and found the claim not to be in order. Further, that in the appeal before the Hon'ble NCLAT, the said issue was discussed and in para 20 observed that the Operational Creditor's claim of Rs. 50,32,028/-is not maintainable under Section 8 and Section 9 of the Code. As per the information of the IRP the said order of Hon'ble NCLAT has not been challenged by the Operational Creditor. It is submitted that the Operational Creditor has no interest in the CIRP process, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the present application could not be filed by RP through Form-FA as it could be only filed by OC. b) The constitution of CoC was not correct. c) The determination of the claim of OC was still pending. ii. That it was submitted that though the Form of the FA requires the submission through applicant, but due to peculiar facts and circumstances in this case, the RP has rightly moved the Form-FA. The Applicant/ Operational Creditor will never sign the Form-FA as he is continuing having grievances of non-payment against the Corporate Debtor. iii. That it has been contended that the Section 12-A of the Code and Regulation 30-A of the CIRP Regulation may be considered with the purposive interpretation, due to the peculiar facts and circumstances of the present matter for the following reasons: a) There were two claims of Operational Creditor. One claim of Rs. 3,67,200/- and the other claim of Rs. 50,32,028/-. On the basis of first claim of Rs. 3,67,200/- CIRP order dated 23.01.2020 was passed. With respect to the other claim of Rs. 50,32,028/- the Hon'ble NCLAT in para 20 of the order has already observed that the second claim of the Operational Creditor of Rs. 50,32,028 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Insolvency No. 601 of 2019) even after the liquidation the CIRP order can be set aside on the basis of settlement. ix. That in view of the above, the petition with respect to the Section 12A read with Regulation 30A of IBBI( Insolvency Resolution Process For Corporate Persons)this petition may be considered under the peculiar facts and circumstances of the matter. x. That with respect to constitution of CoC, the Operational Creditor is unnecessary raising the point of Axis Bank. The Corporate Debtor has a FD of Rs. 11,66,87,311/- with the Axis Bank against which there is a SBB Overdraft limit of 7.30 Cr. and Axis Bank guarantees of Rs. 3, 36, 53, 114. The Axis Bank had raised the claim for Rs. 4.47 crores towards overdraft limit & Rs. 3.36 crores towards Bank Guarantees. 6. We have heard the ld. Counsels for the applicant, Operational Creditor and Suspended Board of Director. 7. Ld. Counsel for the applicant/IRP submitted that in pursuant of the order passed by the Hon'ble NCLAT in Company Appeal No. 205 of 2020, the CoC considered the withdrawal application and by 100% voting resolved to file an application for withdrawal under Section 12A of the IBC, 2016. He further s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hdrawal then the Adjudicating Authority may accept the application filed by the IRP. 14. On the other hand, Ld. Counsel for the Operational Creditor submitted that the appeal filed by the Corporate Debtor is dismissed because the Hon'ble NCLAT in para 25 of the Judgment held that there is no infirmity in the order of the Adjudicating Authority and also vacate the stay order and he further submitted that the IRP was directed to take further action with regard to the CIRP. 15. He further submitted that there is no specific direction in the order by which the IRP claimed that Hon'ble NCLAT directed the IRP and the CoC to withdraw the CIRP even the claim has not been satisfied and he further submitted that the claim of the Axis Bank has not been considered and it has also admitted by the IRP. 16. He further submitted that since his claim has not been accepted, therefore, he has not given his consent to file the withdrawal application. He further submitted that only the applicant shall file Form FA and application for withdrawal under Section 12A and the IRP is not empowered to sign an withdrawal application without the consent of the applicant. 17. Now, in the light of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Adjudicating Authority on behalf of the applicant, within three days of its receipt. (4) Where an application for withdrawal is under clause (b) of sub-regulation (1), the committee shall consider the application, within seven days of its receipt. (5) Where the application referred to in sub-regulation (4) is approved by the committee with ninety percent voting share, the resolution professional shall submit such application along with the approval of the committee, to the Adjudicating Authority on behalf of the applicant, within three days of such approval. (6) The Adjudicating Authority may, by order, approve the application submitted under subregulation (3) or (5). (7) Where the application is approved under sub-regulation (6), the applicant shall deposit an amount, towards the actual expenses incurred for the purposes referred to in clause (a) or clause (b) of sub-regulation (2) till the date of approval by the Adjudicating Authority, as determined by the interim resolution professional or resolution professional, as the case may be, within three days of such approval, in the bank account of the corporate debtor, failing which the bank guarantee received under sub-re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his juncture, we would like to refer the arguments advanced on behalf of the Suspended Board of Directors, who in course of his arguments submitted that the Regulation 30A is not mandatory. Even if we accept the submission raised on behalf of Ld. Counsel for the Suspended Board of Directors then we are of the considered in view of Section 12A the application must be filed by the applicant whose application is admitted u/s 7 or 9 or 10 IBC and nowhere either in the IBC or the in the Regulations, it is mentioned that any person other than applicant, whose application is admitted is empowered to file an application. Of course, under the Regulations it is mentioned that the application must be filed through the IRP or the RP the case may be but it never says that the application will be filed at the instance of the Corporate Debtor or the member of the CoC if it is not duly signed or filled by the applicant, therefore, we are unable to accept the contention of the IRP that in view of the directions given by the Hon'ble NCLAT, the IRP has filed the application. 22. At this juncture, we have again gone through the decision of the Hon'ble NCLAT in Civil Appeal No. (IB) 205 of 202 ..... 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