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TMI Blog2021 (1) TMI 109X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the COC and appointment of IRP. The present application herein was admitted on 13.02.2020 and IRP was appointed and the Operational Creditor was also directed to deposit of ₹ 2 lacs to meet the immediate expense of the IRP but here in place of IRP, the Suspended Board of Directors have filed the present application under Rule 11 of the NCLT Rules, 2016. 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. There is a specific provision under Section 12A for withdrawal of application admitted U/S 7, 9 10 of IB Code and the procedures are prescribed under regulation 30A for withdrawal of applications after the admission of application and before and after the Constitution of the COC, therefore, we can say that before the constitution of the COC the application must be filed by the applicant through the IRP, in view of Regulation 30A (1)(a) and application under Sub Rule (1) shall be made in Form-FA accompanied with bank guarantee and when such application is filed under Clause (a) of Regulation (1) then the IRP is required to submit the applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard of directors; c) Pass such order or further order(s) as deemed fit and appropriate in interest of justice. 6. We have heard Ld. Counsel appearing for the applicant, Operational Creditor and the IRP, who is also present in person and perused the averments made in the application. Ld. Counsel for the applicant/ suspended board of directors submitted that he has settled the matter with the Operational Creditor and Settlement Agreement dated 26.02.2020 has been executed between the parties, which is at page 22-25 as Annexure-B of the application. 7. He further submitted that at page 24-25 of the application, the agreement arrived between the parties has been referred, which is as follows: - (i) The First Party has agreed to withdraw the Insolvency Application / Petition registered as CP (IB)/1874/ND/2019 in terms of present settlement. (ii) The First Party has received part payment during pending of Insolvency Proceedings and towards full and final payment a further sum of ₹ 600000/-(Rs Six lacs) received by the Second Party through RTGS DT 26/02/2020 before signing present Agreement and for the balance amount of Debit Notes. There will be no claim left o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the Operational Creditor, we would like to refer the provisions contained under Section 12A, which relate to withdrawal of application admitted under Section 7, 9 and 10 of IBC, 2016 alongwith Regulation 30A of Insolvency And Bankruptcy Board Of India (Insolvency Resolution Process For Corporate Persons) Regulations, 2016 [CIRP Regulations]. Both are quoted below: - 12A. Withdrawal of application admitted under section 7, 9 or 10. - The Adjudicating Authority may allow the withdrawal of application admitted under section 7 or section 9 or section 10, on an application made by the applicant with the approval of ninety per cent. voting share of the committee of creditors, in such manner as may he specified. 30 A. Withdrawal of application. (1) An application for withdrawal under section 12A may he made to the Adjudicating Authority - (a) before the constitution of the committee, by the applicant through the interim resolution professional; (b) after the constitution of the committee, by the applicant through the interim resolution professional or the resolution professional, as the case may be: Provided that where the application is made unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d regulation 30A, which has been amended recently with effect from 25.07.2019, after the decision of Swiss Ribbons, which provides how the withdrawal applications filed under Section 12A can be entertained by the Adjudicating Authority while considering the prayer of withdrawal of applications, which have been admitted under Section 7, 9 or 10. 13. Bare perusal of the amended provision made in the regulation 30A shows that there are two circumstances under which withdrawal is permissible. One is before the admission of the application under Section 7, 9 or 10 and before the constitution of COC and second one is after admission of the application under Section 7, 9 or 10 and after constitution of the COC and appointment of IRP. The present application herein was admitted on 13.02.2020 and IRP was appointed and the Operational Creditor was also directed to deposit of ₹ 2 lacs to meet the immediate expense of the IRP but here in place of IRP, the Suspended Board of Directors have filed the present application under Rule 11 of the NCLT Rules, 2016 by placing reliance upon the decision of Swiss Ribbons Anr. Vs. Union of India Ors. Reported (2019) 4SCC 17. 14. At this Jun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Directors of the Corporate Debtor. 16. At this juncture, we would like to refer FORM-FA, which is required to be submitted through the IRP before the Adjudicating Authority and the same is quoted below: - 88[ FORM FA APPLICATION FOR WITHDRAWAL OF CORPORATE INSOLVENCY RESOLUTION PROCESS [Under Regulation 30A of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016] [Date] To The Adjudicating Authority [Through the Interim Resolution Professional / Resolution Professional] [name of corporate debtor] Subject: Withdrawal of Application admitted for corporate insolvency resolution process of [name of corporate debtor] I. [Name of applicant], had filed an application bearing [particulars of application, i.e, diary number/ case number] on [Date of filing] before the Adjudicating Authority under [Section 7 / Section 9/ Section 10] of the Insolvency and Bankruptcy Code, 2016. The said application was admitted by the Adjudicating Authority on [date] bearing [case number]. 2. I hereby withdraw the application bearing [particulars of application, i.e, diary number/ case number] filed by me before the Adjudica ..... X X X X Extracts X X X X X X X X Extracts X X X X
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