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TMI Blog2021 (10) TMI 340X X X X Extracts X X X X X X X X Extracts X X X X ..... exercise of its inherent powers under Rule 11 of the NCLT Rules, 2016, allow or disallow an application for withdrawal or settlement. This will be decided after hearing all the concerned parties and considering all relevant factors on the facts of each case. It cannot be read that Hon ble Supreme Court has held that this Appellate Tribunal should exercise inherent power and allow or disallow an Application for withdrawal or settlement. It is well settled that inherent power can be exercised only when no other remedy is available to the litigant and nowhere a specific remedy is provided by the statute. If an effective alternative remedy is available, inherent power will not be exercised, especially when the applicant may not have availed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umar Jain] Member (Judicial) And [Dr. Alok Srivastava] Member (Technical) For the Appellant: Mr. Abhijeet Sinha, Mr. Nitin Mishra, Ms. Mitali Gupta and Mr. Sumit Shukla, Advocates For the Respondent : Mr. Arun Kathpalia, Sr. Advocate with Mr. Kunal Kanungo, Advocates for R-1. Mr. Abhijit Ghokale, Mr. Amey Hadwale, Advocates for R-2, IRP. Mr. Prakash Shah and Mr. Durgaprasad Poojari, Intervention for Chintamani Enclave Pvt. Ltd. ORDER Heard Ld. Counsels for the parties on I.A. No. 2122 of 2021 an Application under Rule 11 r/w Rule 31 of NCLAT Rules, 2016 to place on record terms of settlement agreement and set aside the impugned order dated 13.05.2021 passed in CP No. 1236/IBC/NCLT/MB/MAH/2020. 2. Ld. Counsel for the Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r withdrawal of the Petition is filed, it will take time to decide before the Adjudicating Authority, consequently, the CIRP costs may be increased, therefore, it is requested that this Appellate Tribunal may take on record the terms of the settlement and set aside the impugned order. 5. After hearing Ld. Counsels for the parties, we have gone through the record. 6. Firstly, we have considered the citations of Hon ble Supreme Court. Ld. Counsel for the Appellant place reliance on para 82 of Swiss Ribbons case (Supra). Para 82 of the Judgment is reproduced as under:- 82. It is clear that once the Code gets triggered by admission of a creditor s petition under Sections 7 to 9, the proceeding that is before the Adjudicating Authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ercise inherent power and allow or disallow an Application for withdrawal or settlement. 8. Hon ble Supreme court in the case of Brilliant Alloys Pvt. Ltd. (Supra) held that Regulation 30-A (1) of the Regulations is not mandatory but a directory for the simple reason that on the facts of a given case, an application for withdrawal may be allowed in exceptional cases even after issue of invitation of expression of interest under Regulation 36-A. The facts of present case are altogether different. 9. Now we have considered the case of Kamal Singh (Supra). In this case Dinesh Gupta (Operational Creditor) who initiated the CIRP against the Corporate Debtor, filed an Application before the Adjudicating Authority for withdrawal of the Petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . This provision suggest that such power can be exercised in the absence of express provision of the Code or Regulation. 12. The procedure prescribed for withdrawal of the petition under Section 7, 9 or 10 of the IBC before the constitution of CoC and after constitution of CoC is provided in Section 12-A and Regulation 30-A of the Regulation. When the settlement has taken place at an appellate stage the Applicant who has filed the petition under Section 7 or 9 of the IBC may file the Application (Form FA) under Section 12-A of the IBC r/w Regulation 30-A of the Regulations for withdrawal of the Petition before the Ld. Adjudicating Authority. 13. In this Application and the arguments of Ld. Counsel for the parties have not specified ..... X X X X Extracts X X X X X X X X Extracts X X X X
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