TaxTMI 
TaxTMI 
2021 (7) TMI 99
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....) For proposed Respondents 3 and 4 : Mr. Aalok Jagga, Advocate (Impleading Applicants) JUDGMENT (VIRTUAL MODE) Preamble: 1. The Appellant has preferred the present 'Appeal', as an 'aggrieved person' being dissatisfied with the order dated 19.03.2021 in IA/232/CHE/2021 in IBA/81/2020 passed by the 'Adjudicating Authority' 'National Company Law Tribunal, Division Bench-II, Chennai. 2. Earlier, the 'Adjudicating Authority' (National Company Law Tribunal, Division Bench-II, Chennai) while passing the 'Impugned Order' in IA/232/CHE/2021 in IBA/81/2020 on 19.03.2021(filed by the 2nd Respondent/Resolution Professional under Section 12A of the Insolvency and Bankruptcy Code, read with Section 60(5) of the Code read with Regulation....
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....or' from the rigours of law of the I&B Code and ordered the operation of the 'Corporate Debtor' by its own 'Board of Management' and further allowed the application. Appellant's Contentions: 3. Challenging the validity, correctness and legality of the 'Impugned Order' dated 19.03.2021 in IA/232/CHE/2021 in IBA/81/2020 passed by the 'Adjudicating Authority' (National Company Law Tribunal, Division Bench-II, Chennai), the Learned Counsel for the Appellant submits that the 'Adjudicating Authority' (National Company Law Tribunal, Division Bench-II, Chennai) had failed to hear the application of the Appellant/Financial Creditor before permitting the withdrawal application of the 'Operational Creditor' in IBA/81/2020. 4. The Learned Coun....
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....and in short the 'Adjudicating Authority' had failed to appreciate that the settlement between the 'Operational Creditor' and the 'Corporate Debtor' and the recovery of the dues of the 'Operational Creditor' is not the soul intention of the I & B Code, 2016. 8. The Learned Counsel for the Appellant urges that an omission to hear the Appellant/Bank, the 'Impugned Order' dated 19.03.2021 is contrary to the decision of the Hon'ble Supreme Court in Swiss Ribbons (P) Ltd. v. Union of India and Anr., reported in 2019 (4) SCC Page 17 wherein at paragraph 52 it is observed as under: "It is clear that once the Code gets triggered by admission of a Creditors petition under Sections 7 to 9, the proceeding that is before the Adjudicating Au....
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....ring of the parties concerned and considering all relevant factors on the facts of each case." Thus, Adjudicating Authority has to consider all relevant factors on facts of each case and to take a decision. Para - 83 of the Judgment 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." 1st Respondent Submissions: 10. Per contra, it is the contention of the Learned Counsel for the 1st Respondent that the 'instant Appeal' has become an 'infructuous' one because of the fact that IBA/45/2020 filed by the present ....
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.... constitution of the 'Committee of Creditors' and further that the pendency of application (IBA/45/2020) projected by the Appellant/Bank was not a relevant factor for withdrawal of IBA/81/2020 filed by the 1st Respondent. 13. The Learned Counsel for the 1st Respondent emphatically takes a stand that the withdrawal of 'CIRP Proceedings' against the 'Corporate Debtor' was incompliance with the I & B Code and Regulations made thereunder. Gist of Status Report of Respondent No.2 (Resolution Professional): 14. It is the version of the 2nd Respondent/Resolution Professional that the 'Operational Creditor' had intimated the Applicant/Resolution Professional about the arrival of settlement with the 'Corporate Debtor' on 09.03.2021 and that....
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....30A of IBBI (Insolvency Resolution Process for Corporate Persons) Regulation, 2016. 16. It is brought to the fore that the Applicant/Interim Resolution Professional received the aforesaid Form FA from the 'Operational Creditor' on 10.03.2021 for withdrawal of the main Company Petition, pursuant to Regulation 30A(2) sub section (a). The Applicant was in receipt of a cheque for Rs. 13,36,590/- in respect of the estimated expenses, etc. To put it precisely, IA/232(CHE)/2021 in IBA/81/2020 was filed pursuant to the ingredients of Regulation 30A(3) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons). 17. In view of the upshot, this 'Tribunal' keeping in mind, the facts and circumstances of ....