TMI Blog2019 (12) TMI 1576X X X X Extracts X X X X X X X X Extracts X X X X ..... eading of the amended provision made in the regulations shows that there are two circumstances under which withdrawal is permissible. One is before the admission of the application under Section 7, 9 or 10 and before the constitution of COC and second one is after the admission of the application under Section 7, 9 or 10 and after the constitution of the COC and appointment of IRP. The present application herein is admitted on 01.11.2019 and IRP was appointed and the Operational Creditor was also directed to deposit of ₹ 2 lacs to meet the immediate expense of the IRP but here in the place of IRP the applicant directly filed the application under Rule 11 of the NCLT rules - the applicant has not filed the application under Section 12A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilure, and d) Pass such other order(s) as this Hon'ble Court deem fit and proper in favour of the Operational Creditor. 2. We have heard Ld. Counsel appearing for the Corporate Debtor and perused of the averments made in the application. Ld. Counsel for the Operational Creditor submitted that he has settled the matter with the Corporate Debtor and a compromise settlement agreement has been executed between the parties which is part of this application and so in terms of settlement, the Operational Creditor may be permitted to withdraw the case after recording the terms of settlement. He further submitted that since the parties have arrived at the settlement so there is no need to file an application through IRP because the COC has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dmitted 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. 30 A. Withdrawal of application. (1) An application for withdrawal under section 12A may be made to the Adjudicating Authority - (a) before the constitution of the committee, by the applicant through the interim resolution professional; (b) after the constitution of the committee, by the applicant through the interim resolution professional or the resolution professional, as the case may be: Provided that where the application is made under clause (b) after the issue of invitation for expression of int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r (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-regulation (2) shall be invoked, without prejudice to any other action permissible against the applicant under the Code. 4. Mere plain reading of the provisions shows that Section 12A inserted by the amendment dated 06.06 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view of Regulation 30A(1)(a) and application under Sub Rule (1) shall be made in Form-FA accompanied with bank guarantee and when such application is filed under Clause (a) of Regulation (1) then the IRP is required to submit the application to the Adjudicating Authority within 3 days of its receipt but here in this case, the applicant has not filed the application in terms of Regulation 30A, he filed present application without informing the IRP. In our opinion, it is not in terms of Section 12A read with Regulation 30A of the CIRP Regulations. So far the decisions upon which the Petitioner has placed reliance is concerned, we have gone through them and we are of the view that the facts of those decisions is different from the facts of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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