2017 (7) TMI 1328 - Tri - Insolvency and Bankruptcy

After the commencement of the Insolvency Resolution Process whether a Petitioner can be allowed to withdraw the Petition? HELD THAT - Once a Settlement Deed is on record wherein the Debtor has agreed to make the impugned payment of Rs. 35 lakhs it is hereby decided to allow the Petitioner to withdraw the Petition. Side-by-side it is hereby directed to the Respondent to make the payment of the professional charges of the IRP as already decided in clause (b) of the Settlement Deed that within two days of signing of the Consent Terms the Respondent shall pay the fees cost and expenses of IRP appointed by NCLT. In the case of LOKHANDWALA KATARIA CONSTRUCTION PRIVATE LIMITED VERSUS NISUS FINANCE AND INVESTMENT MANAGERS LLP 2017 (7) TMI 1274 - SUPREME COURT this question was addressed by invoking the provisions of Article 142 of Indian Constitution and held that the settlement between the parties is to be considered by invoking Article 142 to pass such order as is necessary for doing complete justice. The Hon ble Court has held that even after a Petition has been filed and admitted in NCLT it is worthy to allow out-of- court bilateral settlement between the Borrower and the Creditor.

Summary

Issues:
1. Invocation of jurisdiction under section 9 of the I&B Code for Insolvency Resolution Process.
2. Appointment of Interim Resolution Professional and commencement of the Corporate Insolvency Resolution Process.
3. Settlement terms between the parties and withdrawal of the Insolvency Application.
4. Legal question regarding withdrawal of the Petition after commencement of Insolvency Resolution Process.

Analysis:

1. The Tribunal invoked its jurisdiction under section 9 of the Insolvency and Bankruptcy Code, 2016, and declared the commencement of the Moratorium period as per Section 14 of the Code. The order prohibited the institution of any suit or parallel proceedings during this period, except for the supply of essential goods or services to the Corporate Debtor. The Petitioner proposed the appointment of an Interim Resolution Professional, and upon admission of the application, the IRP was directed to carry out necessary Insolvency Process steps as defined under the Code.

2. The Tribunal appointed the Interim Resolution Professional and declared the commencement of the Corporate Insolvency Resolution Process subject to specified conditions. The IRP was tasked with submitting a Resolution Plan for approval as per the provisions of the Code. The Tribunal emphasized the immediate initiation of the required processes such as Public Announcement in accordance with the relevant sections of the Code.

3. The parties entered into settlement terms agreeing to resolve all disputes arising from a Work Order. The Respondent agreed to pay the agreed settlement amount and the fees of the Interim Resolution Professional. The settlement terms included the withdrawal of the Insolvency Application upon receipt of the settlement amount. The Tribunal considered the settlement terms and allowed the Petitioner to withdraw the Petition, directing the Respondent to fulfill the payment obligations as per the settlement.

4. A legal question arose regarding the permissibility of withdrawing the Petition after the commencement of the Insolvency Resolution Process. Citing a previous Supreme Court decision, the Tribunal noted that allowing settlements between parties even after the commencement of proceedings could be considered under Article 142 of the Indian Constitution for complete justice. Following this precedent, the Tribunal permitted the withdrawal of the Petition based on the settlement agreement between the parties, while also directing the Respondent to fulfill the financial obligations towards the Interim Resolution Professional. The Tribunal further ordered the cessation of directions given in the previous order.