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TMI Blog2022 (11) TMI 454X X X X Extracts X X X X X X X X Extracts X X X X ..... f provides a fresh cause of action to take appropriate action against the party concerned. However, it shall not under any circumstances restore or revive the cause of action, which had already merged with the final order of settlement. In the application, the applicant stated that the disposed petition to be revived for the recovery of the outstanding operational debt due from the corporate debtor. Time and again it has been expressed and explained by the Apex Court that the Provisions of IBC, 2016 is not of money recovery proceeding; but here the intent of applicant reveals that the applicant invoices the provisions of IBC,2016 so as to enforce recovery against the corporate debtor; the same should not be allowed. In the circumstances, the petition cannot be restored. Application dismissed. - Restoration Application (IBC) No. 02/KOB/2022 In CP(IB) No.02/KOB/2021 - - - Dated:- 2-11-2022 - Shri P. Mohan Raj : Member (Judicial) And Shri Satya Ranjan Prasad : Member (Technical) For the Petitioner : Mr. Om Prakash, Sr. Adv for J. Lenin, adv. For the Respondent : Mrs. V Kamala Kumar, Adv. ORDER 1. This application has been filed under Rule 11 of NCLT Rules, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 12A- withdrawal of application admitted under Sections 7,9, and 10 The IB (Application to Adjudicating Authority) Rules,2016 Rule 8 permitting withdrawal of the application made under rules 4,6, or 7, as the case may be, on a request made by the applicant before its admission The IB Board of India (Insolvency Resolution Process for Corporate Persons) Regulations,2016 1) Sec. 12A, IBC, 2016, R/w Regulation 30A (1) (a) before the constitution of the committee, by the applicant through the IRP, and 1) Sec. 12A, IBC, 2016, R/w Regulation 30A (1) (b) after the constitution of the committee, by the applicant through the IRP or the RP, as the case may be 6. It is thus patent without any ambiguity from the aforesaid statutory provisions relating to withdrawal that the Financial/ Operational creditor can withdraw the petition either before the admission or after the admission into CIRP. As regards the revival or restoration of disposed applications, only Rule s (48) and (49) in the NCLT Rules,2019, are applicable. Rule (48) permits restoration of an application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to take appropriate action against the party concerned. However, it shall not under any circumstances restore or revive the cause of action, which had already merged with the final order of settlement. 8. From the discussion it is clear that there is no legal backing to grant liberty to restore the petition which was finally disposed of as withdrawn. Now we see the present case in our hand. This application has been filed for restoration; without obtaining any liberty to file such petition. The difference appears from the relief sought in the memo filed by the petitioner and the relief granted by this Adjudicating Authority. prove this. The relief/prayer sought in the memo is as follows: In the event of any default in balance payment as per the Memorandum of Settlement, the Petitioner/Applicant shall have the liberty to initiate appropriate proceedings before the NCLT and/or any other legal remedy available at the time of recovery of the original amount outstanding including the Interest after deducting the payment of Rs.2,20,00,000/- (Rupees Two Crores Twenty Lakhs Only) made under the Memorandum of Settlement. The relief granted by this Authority as follows: In t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Passed in Prashant Agarwal Vs. Vikash Parasrampuria and Anr (Company Appeal (AT) (Ins) No. 690 of 2022) in this order it is held that threshold amount includes both principal debt amount as well as interest on delayed payment which clearly stipulated in the invoices itself. These two citations are deals with merits of the main petition. As observed in the beginning we restrict the discussion limited to this restoration Application, not extended to the points relating to main petition since the main petition is not on file; accordingly, these two citations are not relevant to decide this restoration application. 11. On the Applicant side relies upon order passed by this Authority dated 28.01.2021 passed M/s Sri Ramani Resorts and Hotels Pvt Ltd vs. M/s Sree Bhadra Parks and Resorts Limited. (IA No.02/KOB/2021 in IBA/13/KOB/2020) there this Authority granted liberty to the petitioner to file fresh application if the corporate debtor has not complied the conditions stipulated in the settlement. When the petitioner filed an application to restore the dismissed petition, instead of filing fresh petition, there this Authority observed that merely on technicalities the request cann ..... X X X X Extracts X X X X X X X X Extracts X X X X
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