An application u/s 12A of the Insolvency and Bankruptcy Code ...

Application for CIRP withdrawal denied after commencement of liquidation; SCC not mandatory for prior cases.

October 10, 2024

Case Laws     IBC     AT

An application u/s 12A of the Insolvency and Bankruptcy Code (IBC) for withdrawal of the Corporate Insolvency Resolution Process (CIRP) cannot be filed after the commencement of liquidation proceedings. The statutory scheme delineated by Sections 12A and 33, and Regulation 2B of the Liquidation Regulations, prohibits an application u/s 12A during the liquidation period. The Adjudicating Authority correctly rejected the application filed by the appellant after more than three years from the commencement of liquidation, which was at the instance of the former director. Regarding the constitution of the Stakeholders' Consultation Committee (SCC) under Regulation 31A of the Liquidation Regulations, it is not mandatory for the Liquidator to constitute the SCC when the liquidation commenced before the insertion of Regulation 31A. The explanation to Regulation 31A, inserted in 2022, clarifies that the SCC need not be constituted for liquidations that commenced before the provision came into effect. The statute does not contemplate the performance of an impossible act, and the Adjudicating Authority rightly held that there was no requirement for constituting the SCC in the present case. The NCLAT (Appellate Tribunal) found no error in the order passed by the Adjudicating.

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