TMI Blog2021 (6) TMI 1074X X X X Extracts X X X X X X X X Extracts X X X X ..... undertaking on behalf of them that the BG will not be returned unhonoured under any circumstances and that the amount for which BG has been given will be duly met. Taking into consideration the said submissions made by the Ld. Counsel for the Applicant/RP/Respondents as well as the averments contained in the Application and also based on the unanimous Resolution passed by the CoC on 25.05.2021 under Section 12A of IBC, 2016 for withdrawal of CIRP of the Corporate Debtor, this instant Application stands allowed and in the circumstances, petition stands withdrawn. Consequently, the CIRP initiated against the Corporate Debtor also stands withdrawn. Application closed. - IA/361/CHE/2021 in CP/597/IB/2017 - - - Dated:- 4-6-2021 - R. VARADHARAJAN, MEMBER (JUDICIAL) AND ANIL KUMAR B, MEMBER (TECHNICAL) For Applicant : P.H. Aravindh Pandia, Senior Advocate For Respondent : R. Subramanian, Advocate for RP C. Mohan, Advocate for HDFC Bank ORDER Per: R. VARADHARAJAN, MEMBER (JUDICIAL) 1. This Application has been moved by Board of Directors of the Corporate Debtor whose powers stood suspended seeking thereof for urgent hearing of MA/6/2021. 2. Brief f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efault in relation to repayment of the said loan. 6. However, taking into consideration the orders passed by the Supreme Court on 19.03.2021, and also the representations being made by the Learned Counsel for the Corporate Debtor, this Tribunal directed the RP to file an Affidavit in regard to the current status of the CoC members. 7. Subsequent to the above, when the said MA/6/2021 came up for hearing on 30.03.2021, this Tribunal has passed the following order; Ld. Counsel for the Applicant Mr. T. Sugirtha, Ld. Sr. Counsel Mr. P.H Arvindh Pandian for R1 to R5 and Ld. Counsel Mr. C. Mohan of M/s. King and Partridge for R7 are present through video conferencing mode. As directed by this Tribunal, an affidavit along with the Memo has also been filed as reported by the Ld. Counsel for RP. The parties, viz, the Respondents are permitted to file Counter Affidavit as the statement made in the affidavit is sought to be seriously contested by the Respondents, particularly, R7. In the circumstances, two weeks time is granted for filing of the Counter Affidavit. Post this matter on 22.04.2021 and in the mean while the RP is directed not to precipitate the CIRP process in vie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce the earlier CoC had chosen to withdraw, a de novo CoC is required to be constituted. However, we find this representation made on behalf of the RP very strange as it is required to be seen that the order passed by this Tribunal in admitting the Petition, initiating the CIRP and appointing the IRP was challenged before the Hon ble NCLAT which chose to set aside the order passed by this Tribunal dated 17.11.2017 in CJP/597/(IB)/CB/2017. However, the said order of the Hon ble NCLAT came to be challenged before the Hon ble Supreme Court, which in effect restored the order passed by this Tribunal admitting the Petition in relation to the Corporate Debtor. Hence, the proceedings viz., the legal proceedings can be considered only as a continuation of the proceedings and the date of initiation of the CIRP is required to be reckoned as the date when the order was passed by this Tribunal admitting the Petition and not thereafter. In the circumstances, taking the same as the date of admission of the Petition and action taken by the IRP in calling for the claims, as provided under Section 15 of IBC, 2016 and in case Financial Creditors have chosen to lodge their claims and in rela ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncing mode. Ld. Counsel for the RP represents that a report on 03.05.2021 as directed by this Tribunal has been filed after convening the CoC, however, certain issues are sought to be raised in relation to the Order dated 22.04.2021 passed by this Tribunal, particularly the penultimate portion of the Order, which reads as follows: Sl.No Financial Creditor Voting Share 1 M/s. KGEYES Residency P Ltd 86.05% 2 Mr. Rohit S Bajaj 13.95% Further, it is brought to the notice of this Tribunal by the RP that an objection has been raised by the said KGEYES Residence P Ltd., vide their letter dated 30.04.2021 that it should also form part of the CoC meeting directed to be convened presently. Since the endeavour of this Tribunal vide Order dated 22.04.2021 was to in effect prohibit the RP from convening a meeting of the CoC as suo moto constituted by him in the year 2021, this Tribunal had mentioned the CoC as was prevalent in 2017 to consider the Section 12A Application in view of the directions given by the Hon b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e meeting the RP has moved an agenda for fixing his fee / remuneration, however after CoC passing a Resolution for withdrawal of the Application under Section 12A of IBC, 2016 the RP seeks for fixing his fees. However, it is seen from FORM FA presented before this Tribunal that Bank Guarantee in a sum of ₹ 10 lakh, has been provided towards fees and costs of the Resolution Professional by the Operational Creditor. However, an objection is taken in this regard in relation to the person who had taken the Bank Guarantee (BG) not to be the party concerned, but by a third party company. Learned Senior Counsel for the Board of Directors whose powers stand suspended gives an undertaking on behalf of them that the BG will not be returned unhonoured under any circumstances and that the amount for which BG has been given will be duly met. The same is taken on record and in the circumstances we do not find any force in the contention of the Resolution Professional in this regard 14. Thus, taking into consideration the said submissions made by the Ld. Counsel for the Applicant/RP/Respondents as well as the averments contained in the Application and also based on the unanimous Resoluti ..... 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