TaxTMI 
TaxTMI 
2019 (7) TMI 1713
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....in respect of M/s. Value Designbuild Private Limited (Respondent/Corporate Debtor) on the ground that it has committed, default for an amount of Rs. 5,02,23,791/- (Rupees Five Crores Two Lakhs Twenty Three Thousand Seven Hundred and Ninety One only). Accordingly Adjudicating Authority admitted the case on 10.01.2019, by initiating CIRP and appointing IRP etc. (2) Accordingly, IRP has conducted the First meeting of Committee of Creditors on 08.02.2019, wherein HDFC Ltd, Authorised Representative of the Home Buyers, Shri Koshy Varghese, Managing Director of the Corporate Debtor, Ms. Sunita Srinivas, Authorised Representative of Mr. John Varghese, apart from IRP were present. Consequently, during 4th CoC meeting, basing on the claims received from the Financial Creditors of the Company, Committee of Creditors consisting of HDFC Ltd., (with claim amount of Rs. 25.62 Crores constituting 57.90%); Home Buyers (with claim amount of Rs. 18.63 Crores, constituting 42.10%) were formed. The Financial Creditor (Petitioner of the CP) was not included in the COC as he is the brother of Director of Corporate Debtor and thus he is related party. (3) During 4th COC held on 29.04.2019, it was int....
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....er/Financial Creditor and Shri Abhijit Atur, learned Counsel for the Respondent. We have carefully perused the pleadings of the parties and extant provisions of the Code and the law. 5. Shri Raghuram Cadambi learned Counsel for the Applicant (HDFC Limited), while reiterating various averments made in the Application, has further submitted that 'Applicant' as referred to in Section 12-A of Code is any party, who has filed Application under that Section, and moreover, the Adjudicating Authority permitted them to file Application. 6. Ms. Sunita Srinivas, learned Counsel for the original Petitioner/Financial Creditor, has further submitted that the Application is not maintainable and even the requisite percentage of 90% is not fulfilled and she would not accept the cheque furnished by the Corporate Debtor and the Petitioner is only interested in continuing CIRP failing which Liquidation. 7. The main Company Petition was filed by Mr. John Varghese (Petitioner/Financial Creditor), U/s. 7 of the Code, on the ground that it has committed default for an amount of Rs. 5,02,23,791/-. On scrutiny of all claims including the claim of Petitioner, IRP accepted the claim of Petitioner f....
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....nstituting to the 10.15% have not responded to the proposal, it means they have not opposed the proposal indirectly. 10. It is relevant to point out the judgment of the Hon'ble Supreme Court in Anup Prakash Vyas Vs. University of Pune and another 2013(2)Mh. L. J at page No. 630, has also inter alia held the concept of round up can be applied in given case basing on justification. It is relevant to extract relevant paragraphs 8, 10, 13 & 14 of the judgement as below: "8. In State of U.P. and another vs. Pawan Kumar Tiwari and Ors. , (2005) 2 SCC 10, the U.P. State Public Service Commission advertised ninety three posts of Civil Judge (Junior Division). Certain posts were reserved in accordance with the relevant laws. The controversy pertained to the application of percentage as against the total number of posts. The percentage of reservation as applicable and as were actually applied were set out in a table. Under the general category, the percentage prescribed was 50%, whereas the percentage of the candidates appointed in that category was 46.50% and forty six posts were reserved. The respondent who belonged to the general category was the first in the waiting list, having b....
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....s to pay admitted debt to the Financial Creditor, the Appellant/Promoter of Corporate Debtor has offered Cheque bearing No. 000351 dated 17.07.2019 drawn on HDFC Bank, Richmond Road Branch, Bangalore for a sum of Rs. 90,29,491/- (Rupees Ninety Lakhs Twenty Nine Thousand Four Hundred and Ninety one only) in favour of Mr. John Varghese, the Financial Creditor. When the Cheque is offered to the learned Counsel for the Petitioner/Financial Creditor, she refused to accept to it. Therefore, the cheque is deposited with the Registry, NCLT Bengaluru Bench, vide memo dated 17.07.2019. 12. It is relevant to refer the judgement of the Hon'ble Supreme Court in the case of Swiss Ribbons Private Limited and Another Vs. Union of India and Others (2019) 4 Supreme Court Cases 17, with regard to the filing of the Application Under Section 12-A and its related questions. Para Nos 79, 80, 81, 82 and 83 deals with the issue, which are extracted below: As per Under Section 12-A, which reads as under: "Section 12-A is not violative of Article 14 "79. Section 12-A was inserted by the Insolvency and Bankruptcy (Second Amendment) Act, 2018 with retrospective effect from 06.06.2018. It reads as foll....
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....n this basis read with the intent of the Code, the Committee unanimously agreed that the relevant rules may be amended to provide for withdrawal post admission if the CoC approves of such action by a voting share of ninety percent. It was specifically discussed that Rule 11 of the National Company Law Tribunal Rules, 2016 may not be adopted for this aspect of CIRP at this stage (as observed by the Hon'ble Supreme Court in Uttara Foods and Feeds (P) Ltd. Vs. Mona Pharmachem and even otherwise, as the issue can be specifically addressed by amending Rule 8 of the CIRP Rules." Before this section was inserted, this Court, under Article 142, was passing orders allowing withdrawal of applications after creditors' applications had been admitted by NCLT or NCLAT. 81. Regulation 30-A of the CIRP Regulations states as under: 30 - A. Withdrawal of application:- (1) An Application for withdrawal under Section 12-A shall be submitted to the interim resolution professional or the resolution professional, as the case may be, in Form FA of the Schedule before issue of invitation for expression of interest under Regulation 36-A. (2) The application in sub-regulation (1) shall be accom....
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....cial creditors have to put their heads together to allow such withdrawal as, ordinarily, an omnibus settlement involving all creditors ought, ideally, to be entered into. This explains why ninety per cent, which is substantially all the financial creditors, have to grant their approval to an individual withdrawal or settlement. In any case, the figure of ninety per cent, in the absence of anything further to show that it is arbitrary, must pertain to the domain of legislative policy, which has been explained by the Report (supra). Also, it is clear, that under Section 60 of the Code, the Committee of Creditors do not have the last word on the subject. If the Committee of Creditors arbitrarily rejects a just settlement and/or withdrawal claim, NCLT, and thereafter, NCLAT can always set aside such decision under Section 60 of the Code. For all these reasons, we are of the view that Section 12-A also passes constitution muster. By reading of extant provisions of Code and the above judgment, it is clear that power to accept Application for withdrawal of Petition/Application is vest with Committee of Creditors and finally with Adjudicating Authority. Therefore, there is no bar for the ....