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TMI Blog2022 (7) TMI 659X X X X Extracts X X X X X X X X Extracts X X X X ..... l Creditor, the said amount would immediately be utilized for the said purpose because it is an admitted liability which has to be liquidated as soon as the permission of Reserve Bank of India is granted. The Corporate Debtor is directed to make a deposit of the approximate conversion of USD in Indian Rupees and place the same with the Registry of this Court, within 60 days from this order - application disposed off. - I.A ( IBC ) No. 1056/KB/2021 IN C. P. ( IB ) No. 834/2018 - - - Dated:- 12-7-2022 - Mr. Rohit Kapoor , Member ( Judicial ) And Mr. Harish Chander Suri , Member ( Technical ) For the Operational Creditor : Mr. Rahul Auddy , Adv. For the Corporate Debtor : Mr. Joy Saha , Sr. Adv. Mr. Siddhartha Chatterjee , Adv. Mr. Abir Lal Ghosh , Adv. ORDER Per : Harish Chander Suri , Member ( Technical ) 1. The Court is convened by video conference today. 2. This application has been filed on behalf of the Corporate Debtor praying for recalling of order dated 30th August, 2021,which is reproduced as under:- Ld. Counsel on both sides present. It has been submitted across the Bar that the Corporate Debtor is ready and willing to mak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly liable to be recalled and /or set aside. 4. It is submitted in this application that the aforesaid order impugned in this application was passed without taking into consideration the provisions of the Code, 2016 and without considering the principles embodied therein . 5. It is submitted that the mistake is self-evident and the Adjudicating Authority should correct the same and to pass such consequential orders so as to negate its effect. It is submitted that the Corporate Debtor has at all times been interested in making payment to the Operational Creditor. However, unless necessary approval is granted by the RBI, such payment in law cannot be made. It is stated that a sum of about Rs.10,75,85,808/- is receivable by the Corporate Debtor from various Government Agencies and /or instrumentalities like West Bengal Electronics Industry Development Corporation Limited, Kolkata Municipal Corporation, Guwahati Municipal Corporation and Karnataka State Electronics Development Corporation . 6. It is submitted by the Corporate Debtor /applicant that the said order may be recorded to prevent abuse of process of this Court. 7. It would be seen from the aforesaid order, that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the proceedings before the National Company Law Tribunal where the petitioner is a party. With the aforesaid observations, the writ petition is disposed of. There shall be no order as to costs. All parties shall act on the server copy of this order duly downloaded from the official website of this Court . 11. A peculiar situation has arisen in this matter when in a petition under section 9 of the Code, the Corporate Debtor had to make payment to the Operational Creditor for supply of the goods subject matter of this case, which was to be made in USD. 12. From the very beginning, the Corporate Debtor has admitted the receipt of goods and acknowledges the liability towards the Operational Creditor but due to the fact that based on the said settlement/consent terms, the corporate debtor through its letters March 13, 2019, and March 14, 2019, instructed its banker, Indian Overseas Bank having its branch office at Shreemani Market Branch, 204/1, Bidhan Sarani, Kolkata-700006, to remit a sum of USD 60000.00 and USD 43588.05 in favour of the operational creditor. Indian Overseas Bank through its letter dated March 15, 2019 bearing reference no. 275/2018-2019 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said company petition upon recording that there were certain technical reasons which had prompted the filing of the miscellaneous application by its Order dated February 15, 2020. 17. It is submitted that since the Reserve Bank of India did not respond to the letters written by the corporate debtor nor did it accede to its request to grant necessary approval for the remittance of money in favour of the operational Creditor, the corporate debtor on or about August 05, 2021, has made a demand for justice before it. In the said letter the corporate debtor has elaborately explained the predicament faced by it at the hands of the operational creditor before this Adjudicating Authority. In addition, thereto, the corporate debtor has once again supplied all the relevant documents to the Reserve Bank of India and has undertaken to render necessary assistance to expedite the process of grant of approval. On the self-same day, the corporate debtor has sent another letter to its banker requesting it to simultaneously pursue the matter with the Reserve Bank of India. 18. It is stated that the implications of a proceeding initiated within the meaning of Section 9 of the Insolvency and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... currency to the Operational Creditor, the said amount would immediately be utilized for the said purpose because it is an admitted liability which has to be liquidated as soon as the permission of Reserve Bank of India is granted. A consent order once passed cannot be recalled or rebutted by this Adjudicating Authority looking at the helplessness of the Corporate Debtor who is trying hard to get the requisite permission from the Reserve Bank of India and the genuine claim of the Operational Creditor who had supplied the goods and has a valid legal right to recover the said amount from the Corporate Debtor. 22. We direct the Corporate Debtor to make a deposit of the approximate conversion of USD in Indian Rupees and place the same with the Registry of this Court, within 60 days from this order. 23. This unusual situation that has arisen in this matter makes us wiser and prevents us from making any order of Corporate Insolvency Resolution Process against the Corporate Debtor because default has taken place but not due to the fault of the Corporate Debtor. The Corporate Debtor accepts and acknowledges the liability and is ready to make the payment but the only hurdle is the per ..... X X X X Extracts X X X X X X X X Extracts X X X X
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