TaxTMI 
TaxTMI 
TaxTMI 
2021 (1) TMI 109
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..... Further, after the settlement, the Operational Creditor has no grievance against the Corporate Debtor and wishes to withdraw the insolvency petition and the Operational Creditor has also agreed to support the present application for termination of CIRP, and as such the present application has been filed. 3. Further by putting the Corporate Debtor through Resolution Process no purpose would achieve. 4. Further, in terms of law settled by Hon'ble Supreme Court of India in the case of Swiss Ribbons, this Tribunal is empowered to terminate the Resolution Process in terms of settlement arrived in between the parties before the meeting of the CoC. Further, the applicant has agreed to pay an / or reimburse the costs and charges of the IRP. 5. Further, the following prayers are made on behalf of the applicant: - a) Allow the present application and terminate the Insolvency Resolution Process and recall the order dated 13.02.2020 passed in IB/1874/ND/2019 and the Interim Resolution Professional be discharged; b) Direct or order that the Corporate Debtor is released from the provisions of IBC, 2016 and allowed to function freely through it's board of directors; c) Pass suc....
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....ted (2019) 4 SCC 17, even the Corporate Debtor can file an application for withdrawal of the main application filed by the Operational Creditor. 9. Ld. Counsel for the Operational Creditor submitted that the matter has been settled between the parties, hence the Operational Creditor has no grievance against the Corporate Debtor and he has no objection, if the prayer of the applicant is allowed. 10. On the other hand, Ld. Counsel for IRP and IRP, who also appeared in person submitted that he has already received the claim of the Financial creditors and after the constitution of COC, he also received the resolution plans. He further submitted that this application has been filed without informing the IRP and the IRP had no information in respect of filing of this application, whereas in view of the Regulation 30A, the application must be filed through the IRP. 11. In the light of the submissions raised on behalf of the applicant/ Suspended board of Directors of the Corporate Debtor, Operational Creditor and the IRP, we have gone through the averments made in the application but before considering the submissions of the Operational Creditor, we would like to refer the provisions co....
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....n 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 sub-regulation (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-regulation (2) shall be invoked, without prejudice to any other action permissible against the applicant under the Code." 12. Bare perusal of the provisions shows that Section 12A is inserted by the amendment dated 06.06.2018 under which an application which was admitted under Section 7, 9 or 10 can be withdrawn and regulation 30A, which has been amended recently with effect from 25.07.2019, after the decision of Swiss Ribbons, wh....
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....o consider all relevant factors on facts of each case and to take a decision. Para - 83 of the Judgement in the matter of "Swiss Ribbons" has dealt with a decision being taken by COC under Section 12A and left the door open that if COC arbitrarily rejects a just settlement and/or withdrawal claim the NCLT, and thereafter NCLAT can set aside such decisions under Section 60 of the Code. 16. We do not find fault with the Impugned Orders passed. Adjudicating Authority did not accept or reject the withdrawal Application. It referred it to COC. The decision taken by COC in rejecting the request for withdrawal has not been challenged before the Adjudicating Authority. Considering these developments noticed also, no interference is called for." 15. In the light of the aforesaid decision and discussions made in the aforementioned paras, when we shall consider the case in hand then we are of the considered view that in the present case, even the application has not been filed by the Operational Creditor rather it has been filed by the Suspended Board of Directors of the Corporate Debtor. 16. At this juncture, we would like to refer FORM-FA, which is required to be submitted through the IR....