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TMI Blog2022 (11) TMI 805X X X X Extracts X X X X X X X X Extracts X X X X ..... dings initiated and the Committee of Creditors constituted, the Adjudicating Authority under Section 12-A of the Code, may allow withdrawal of application made by the Applicant i.e. IRP/RP where the Committee of Creditors approves with 90% voting share. In the present case, the CoC in its 15th Meeting approved withdrawal of application against the Corporate Debtor by more than 93% voting share and issued Form-FA which is a statutory requirement - this Tribunal is of the view that the order passed by the Adjudicating Authority is a non-speaking and without assigning any reasons is per se illegal. The Adjudicating Authority is directed to reconsider the Application on its merit and pass a reasoned order in accordance with law within a period of 45 days from receipt of copy of this order - Appeal disposed off. - Company Appeal (AT) (Insolvency) No. 247 of 2021 - - - Dated:- 17-11-2022 - [ Justice Anant Bijay Singh ] Member ( Judicial ) And [ Kanthi Narahari ] Member ( Technical ) For the Appellant : Mr. Ninad Laud , Mr. Ivo D Costa, Mr. Avinash Mathews and Mr. Swapan Pradhan , Advocates For the Respondents : Mr. Sandeep Bajaj , Mr. Devansh Jain, Mr. Ajay Sharma and Ms ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Resolution plan submitted by Prospective Resolution Applicant is not viable and lower than the dues of all secured creditors. The IRP submitted its report with regard to the viability of the plan. Apart from the above the CoC in its 15th meeting taken a decision to withdraw the application filed against the Corporate Debtor under Section 7 of the I B Code, 2016. The learned Counsel submitted that the wisdom of CoC is paramount and cannot be interfered with by the Tribunals as held by the Hon ble Supreme Court in Vallal RCK Vs. Siva Industries and Holdings Ltd. reported in (2022) SCC Online SC 717. 5. In view of the reasons as stated above the Learned Counsel prayed this Bench to allow the Appeal as prayed for. Respondent s Submissions: 6. The Respondent represented by RP filed its Reply. Prima facie the RP expressed no objection in allowing the Appeal. However, it is submitted that the payment of fee of the IRP/RP and expenses incurred thereat may be considered. Analysis/Appraisal 7. Heard the Learned Counsel for the respective parties, perused the pleadings and documents. It is an admitted fact that CIRP was initiated against the Corporate Debtor and the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0% voting share of the Committee of Creditors, in such manner as may be specified. 10. The said provision has been inserted by Act 26 of 2018 w.e.f. 06.06.2018. In this regard, the Regulation 30A of The Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulation, 2016, is relevant. Sub-regulation (1) of Regulation 30A states as under: An application for withdrawal under Section 12-A may be made to the Adjudicating Authority (a) before the Constitution of the Committee, by the Applicant through the Interim Resolution Professional, (b) after Constitution of the Committee, by the Applicant though the Interim Resolution Professional or the Resolution Professional, as the case may be Provided that where the application is made under Clause (b) after the issue of invitation for Expression of Interest under Regulation 36-A, the applicant shall state the reasons justifying withdrawal after issue of such invitation. 11. From the above provisions of law, the law permits the Applicant through IRP/RP to file an Application under Form-FA seeking withdrawal of proceedings initiated against the Corporate Debtor either unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r withdrawal under Section 12A may be 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 under clause (b) after the issue of invitation for expression of interest under Regulation 36-A, the applicant shall state the reasons justifying withdrawal after issue of such invitation. (2) The application under sub-regulation (1) shall be made in Form FA of the Schedule accompanied by a bank guarantee- (a) towards estimated expenses incurred on or by the interim resolution professional for purposes of Regulation 33, till the date of filing of the application under clause (a) of sub-regulation (1); or (b) towards estimated expenses incurred for purposes of clauses (aa), (ab), (c) and (d) of Regulation 31, till the date of filing of the application under clause (b) of sub-regulation (1). (3) Where an application for withdrawal is under clause (a) of sub-regulation (1), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial wisdom of the CoC has been given paramount status without any judicial intervention for ensuring completion of the stated processes within the timelines prescribed by the IBC. It has been held that there is an intrinsic assumption, that financial creditors are fully informed about the viability of the corporate debtor and feasibility of the proposed resolution plan. They act on the basis of thorough examination of the proposed resolution plan and assessment made by their team of experts. A reference in this respect could be made to the judgments of this Court in the cases of K. Sashidhar v. Indian Overseas Bank and Others, Committee of Creditors of Essar Steel India Limited through Authorised Signatory v. Satish Kumar Gupta and Others, Maharashtra Seamless Limited v. Padmanabhan Venkatesh and Others, Kalpraj Dharamshi and Another v. Kotak Investment Advisors Limited and Another5, and Jaypee Kensington Boulevard Apartments Welfare Association and Others v. NBCC (India) Limited and Others. 24. When 90% and more of the creditors, in their wisdom after due deliberations, find that it will be in the interest of all the stake-holders to permit settlement and withdraw CIRP, in ou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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