2022 (11) TMI 805

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....s and circumstances as narrated in I.A. No. 1339 of 2019. Brief Facts: Appellant's Submissions: 2. Aggrieved by the aforesaid order, the Appellant preferred by the present Appeal. The Learned Counsel for the Appellant submitted that the Appellant initiated proceedings under Section 7 of the I&B Code, 2016 against the Respondent / Corporate Debtor before the Adjudicating Authority (NCLT, Mumbai). The Learned Adjudicating Authority admitted the Application vide order dated 16.04.2018 and initiated Corporate Insolvency Resolution Process (in short 'CIRP') and appointed IRP. The IRP taken over the charge on 24.04.2018 and initiated the process as contemplated under law, by preparing the list of creditors and constituted the CoC and convened the meetings of CoC from time to time. 3. The Learned Counsel submitted that the Appellant who initiated CIRP proceedings against the Respondent / Corporate Debtor is a Financial Creditor who constitutes 93.2% voting share in the CoC, decided to withdraw the CIRP proceedings against the Respondent / Corporate Debtor. Accordingly, the Appellant issued Form-A dated 03.03.2019 seeking withdrawal of application against the Corporate Debtor. ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....for CD. It is also on record that the RP submitted its report on the Resolution Plan submitted by M/s Paras Agarwal to the CoC wherein the RP with regard to Repayment of the Debts of Operational Creditors is concerned, it was observed as under: (ii) the Resolution Plan offered by RA is of Rs. 65.00 Lacs to all the Creditors is lower than dues to secure creditors. 8. From the Minutes of CoC Meeting it is evident that the Resolution Applicant was invited in the 14th CoC Meeting held on 19.03.2019, however, no decision taken by the CoC members with regard to approval of Resolution Plan. However, the Appellant being Applicant who initiated CIRP Proceedings against the Corporate Debtor submitted the withdrawal application in Form FA dated 03.03.2019 seeking withdrawal of application against the Corporate Debtor. In the 14th CoC Meeting itself the withdrawal of application was discussed. 9. Whilst, in the 15th CoC Meeting held on 04.04.2019 after deliberations with the Members, a decision was taken to withdraw the CIRP Proceedings against the Corporate Debtor. It is an admitted fact that the Appellant has the requisite voting share for withdrawal of application against the....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....where the Committee of Creditors approves with 90% voting share. In the present case, the CoC in its 15th Meeting approved withdrawal of application against the Corporate Debtor by more than 93% voting share and issued Form-FA which is a statutory requirement. 12. The Respondent in its application filed before the Adjudicating Authority detailed out the sequence of events and the Resolutions passed in the crucial CoC Meetings. However, the Adjudicating Authority failed to consider the Application on its merit and passed the following order: "In IA-1339/2019- The Ld. PCS submitted that the present application is filed seeking Withdrawal of the Petition. The Bench is not satisfied with the Reply. It appears that a single money from the amount of Rupees Thirteen Cores has ben paid by the Corporate Debtor. This is an Application filed under section 12-A of the I&B Code. The Cosmos Co-operative Bank Limited is having 93% voting percentage in the Committee of Creditors. Since the submission of the Financial Creditor is not convincing nor satisfactory this Bench has decided to refer the matter to the RBI who can take appropriate decision on proper action to be taken in the pre....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....y percent voting share, the resolution professional shall submit such application 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." 18. A perusal of the said Regulation would reveal that where an application for withdrawal under Section 12A of the IBC is made after the constitution of the Committee, the same has to be made through the inter....