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2021 (11) TMI 181 - Tri - Insolvency and BankruptcyMaintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - short supply of goods - Raw Cashew Nuts Crops - HELD THAT - The cause of action in the 'Demand Notice' is exactly identical to the present Company Petition (IB). When this was brought to the attention of the Petitioner/Operational Creditor, the Petitioner Mr. Jackson J. (Power of Attorney Holder) filed this Interlocutory Application praying to withdraw the Company Petition (IB) i.e., CP(IB)/03/KOB/2021. This was done on coming to know that Mr. Jose Samuel issued a Section 8 notice to the Corporate Debtor. This Company Petition (IB) was filed by the Petitioner/Operational Creditor falsely claiming to be the Power of Attorney Holder of Mr. Jose Samuel, with the intention to obtain a wrong gain to him and causing a wrongful loss to the Respondent/Corporate Debtor Company. The Applicant/Operational Creditor are directed to pay the costs of ₹ 25000/- through Bharatkosh to the Ministry of Corporate Affairs within one week from that day and submit proof of payment along with an affidavit on or before 10.08.2021, in order to consider his request for withdrawal of CP(IB)/03/KOB/2021 - application allowed.
Issues Involved:
Withdrawal of Company Petition under Section 60(5) of IBC, 2016 based on maintainability concerns raised by Respondent/Corporate Debtor. Analysis: Issue 1: Withdrawal of Company Petition under Section 60(5) of IBC, 2016 The case involved an application filed by M/s. Thankam Cashew Factory seeking withdrawal of the Company Petition (CP(IB)/03/KOB/2021) under Section 60(5) of the Insolvency and Bankruptcy Code, 2016. The Operational Creditor, represented by a Power of Attorney Holder, cited merit in the Respondent/Corporate Debtor's contention regarding the maintainability of the petition. The Respondent had raised objections related to the nature of the petitioner being a proprietary concern and the authority of a Power of Attorney Holder to represent an Operational Creditor in such proceedings. Issue 2: Compliance with Procedural Requirements During the proceedings, the Operational Creditor failed to initially produce proof of payment of costs amounting to ?25,000 within the stipulated timeline. Subsequently, the Operational Creditor filed another application (IA(IBC)/132/KOB/2021) to condone the delay in depositing the costs, enclosing proof of payment made through Bharatkosh. The Tribunal allowed the application to condone the delay, considering the compliance with the payment requirement. Issue 3: Final Decision and Order Upon reviewing the pleadings and considering the compliance with the procedural requirements, the Tribunal, in its order dated October 6, 2021, allowed the withdrawal of the Company Petition (CP(IB)/03/KOB/2021). The Tribunal emphasized that the Applicant had fulfilled the conditions set forth, including the payment of costs, leading to the allowance of the withdrawal application. In conclusion, the Tribunal granted the withdrawal of the Company Petition based on the Operational Creditor's application under Section 60(5) of the IBC, 2016, after addressing the maintainability concerns raised by the Respondent/Corporate Debtor. The compliance with procedural requirements, particularly the payment of costs, played a crucial role in the final decision to allow the withdrawal of the petition.
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