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TMI Blog2024 (10) TMI 826X X X X Extracts X X X X X X X X Extracts X X X X ..... ) filed an application under Section 9 of the Insolvency and Bankruptcy Code, 2016 (in short 'Code') bearing CP (IB) 322/ND/2021 for initiation of CIRP against M/s TRN Energy Pvt. Ltd. (Corporate Debtor). The application was admitted on 07.12.2021 and Ramkripal Sharma was appointed as the Interim Resolution Professional (in short 'IRP'). 3. The Operational Creditor submitted Form-FA to the IRP who filed I.A. No. 5908 of 2021 before the Adjudicating Authority for withdrawal of the main petition. The Adjudicating Authority permitted the withdrawal of the main petition bearing CP (IB) No. 322/ND/2022 and disposed of I.A No. 5908 of 2021 with the following order:- "IA/5908/2021 By filing this application, the applicant has prayed to withdraw the present Company Petition bearing No. IB-322/ND/2021.Heard the ld. Counsel appearing for the applicant as well as IRPappeared in person and perused the averments made in the application. Ld.Counsel for the applicant submits that the Form FA is submitted by the applicant of Company Petition No. IB/322/ND/2021on 16.12.2021,at page no. 17 and the CIRP was initiated on 07.12.2021. He further submits that the CoC has not been constituted as yet. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... While this application was pending, the Appellant being the Financial Creditor, submitted its claim to the IRP on 21.12.2022 since the last date for submission of claim was 23.12.2022. The IRP did not bring it to the notice of the Adjudicating Authority either through an application or orally about the submission of claim by the Financial Creditor. I.A. No. 6271 of 2022 was thus allowed on 22.12.2022 prior to the last date of submission of claim. The order dated 22.12.2022 is reproduced as under:- "I.A. No. 6271 of 2021 This is an application under Section 12A of IBC r/w 60(5) of the Code and Regulation 30A(1)(a) of the Regulations alongwith affidavit as well as copy of the settlement agreement. We have perused the contents of copy of the settlement agreement. Copy of the settlement agreement denotes that the entire principal amount outstanding has been paid by the CD to the OC and the said payment was made towards full and final settlement of the entire outstanding amount. Therefore, the IRP has prayed for withdrawal/termination of CIRP process in view of the Form FA for withdrawal of the CIRP process under Regulation 30A of the Regulations submitted by the OC. Having hea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in which he made the following averments in para 12 of the reply "that during the course of the proceedings, a query was raised by the Hon'ble NCLT whether the CoC was constituted or not. It was apprised to the Hon'ble NCLT that no CoC has been constituted. The answering Respondent was not present during the course of hearing in person due to some personal difficulty. It was erroneously submitted that no claims were received wherein the intent was to apprise the Tribunal that no CoC has been formed." 10. The IRP has thus in his reply admitted that it was erroneously mentioned before the Adjudicating Authority that no claim was received whereas the claim by the Appellant had already been received by the IRP on 21.12.2022 and the order on the application was passed on 22.12.2022 in which it has been specifically observed by the Adjudicating Authority that no claim has been received from any claimant as confirmed by the IRP. 11. The application bearing I.A. No. 226 of 2023 has been dismissed by the Adjudicating Authority by the impugned order dated 07.02.2023 but the following observations have been made "as the CD is already discharged from the clutches of CIRP and Resolution Profe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is an act of concealment of fact on the part of the respondent because the Hon'ble Supreme court has time and again held that a litigant when comes to the court has to bring all the facts to the notice of the court and if some facts which are relevant, are concealed then the litigant is guilty of concealment of facts" 14. It is submitted that the Respondents cannot be given premium of their misdeeds by dismissing the application filed by the Appellant who has been unnecessary relegated to its remedy to file an application under Section 7 whereas the OC could not have been given a priority in payment of dues over and above the financial creditor (Canara Bank). It is further submitted that once the CIRP is initiated, it is a proceeding in rem and in this regard, the Appellant has drawn our attention to a decision of this Court rendered in the case of Jai Kishan Gupta Vs. Green Edge &ors. CA (AT) (Ins) No. 969- 970 of 2019 to contend 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 authority, being a collective proceeding, is a proceeding in rem. Being a proceeding in rem, it is necessary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctifying its mistake and or to undo the injustice caused to the Appellant, the Adjudicating Authority has dismissed the application bearing 226 of 2023 holding that it could not find any justifiable reason to allow the prayer made in the application and rather in the entire impugned order expressed its anguish and dissatisfaction about the working of the IRP and repeatedly cautioned him to be careful while exercise of his functions and discharging his duties. The prejudice shown by the Appellant, having been caused to it on account of withdrawal of the petition after receiving about Rs. 12 Cr. as an operational creditor over and above the claim of the Appellant being a financial creditor is well made out which should not have been ignored by the Adjudicating Authority while dismissing the application of the Appellant for revival of the main petition which appears to be an act of connivance of the IRP with the OC so that the OC may settle its dues before the dues of the Appellant (Canara Bank) are considered. The filing of application under Section 7 by the Appellant is in no way causes any hindrance in maintaining the present application by the Appellant because the said applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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