Shailesh Bhalchandra Desai And Anr. vs Cane Agro Energy (India) Limited

4.,"Jankalyan

Nagari Sahkari

Patsanstha",FORM C,7.66,27.06.2020

5.,"Sangali District

Central Coop

Bank Ltd.",FORM D,191.24,27.06.2020

6.,Bank of India,FORM C,80.82,29.06.2020

7.,"Krantiagrani

Dr. G. D. Bapu

Lad Sahakari

Karkhana Ltd",FORM B,0.65,26.06.2020

8.,Bank of India,FORM F,157.62,29.06.2020

,"Total Claims received as

on 6th July 2020",,437.99,

2.,"IB 915

(MB)

2019","SHREE BALAJI

SUGAR CO

(Section 9)","Matter amicably

settled before

admission. Out of

the total dues 1/3rd

was to be paid

before 12th March,

2020. Hence, Rs. 2

crores out of Rs.

5.92 Cr (including

interest) was paid

on that date.

Remaining 2/3rd

was to be paid on

or before 31st Mar

2020. This amount

is pending due to

the lockdown.

Whereas the CD is

in continuous touch

with the Applicant

therein and the

payments

schedules are

being worked out

afresh.",

3.,"IB 3010

(MB)

2019","ISGEC HEAVY

ENGINEERING

LIMITED

(Section 9)","The Present

Application",

In the instant case the Application has been filed before the constitution of the Committee of Creditors (CoC) under Regulation 30A of the,,,,

Regulations within three days of submission of Form-FA. Hence, considering the facts and circumstances, the submission made and the available",,,,

record, I am of the considered opinion that the prayer sought by the IRP in the IA No. 1025 of 2020 can be allowed. Hence ordered.",,,,

ORDER,,,,

The IA 1025/2020 be and the same is disposed of in terms of this order indicated infra. The CP (IB) No. 3010/ MB/2019 is allowed to be withdrawn,",,,,

subject to settlement of the claims of all other creditors within a period of three months hence. The Corporate Debtor shall report compliance by the,,,,

end of the period. Failing which the present CIRP shall get revived and further action under the Code shall ensue, and the present order shall cease to",,,,

have any effect.,,,,

Sd/-,,,,

JANAB MOHAMMED AJMAL,,,,

MEMBER (JUDICIAL),,,,

I agree with the facts mentioned above. However, I beg to differ with the order or decision of my Ld Member (Judicial) to the extent that “The",,,,

CP (IB) No. 3010/ MB/2019 is allowed to be withdrawn, subject to settlement of the claims of all other creditors within a period of three months",,,,

hence. The Corporate Debtor shall report compliance by the end of the period. Failing which the present CIRP shall get revived and further action,,,,

under the Code shall ensue, and the present order shall cease to have any effectâ€​.",,,,

In my humble view other Financial, Operational Creditors (Approx. claim amount of Rs 563.60 Crores) are not party in this case, no notices have",,,,

been issued to them nor any reply of theirs in the file therefore without hearing them no order can be passed against them more so to settle their,,,,

claims within a period of 3 months. Further in IBC there is no provision, power is vested upon the Adjudicating Authority to direct a settlement more",,,,

so when the parties are not before us and the fact that Approx. Rs 563.60 Crores is the claims received by the Corporate Debtor.,,,,

Further from the above facts its noted that already 2 petitions were withdrawn as per the above table. As per the public Advt dated 17.06.2020,,,,

issued by the IRP, the last date to receive claims is 29th June 2020 whereas this withdrawal application was filed on 26th June 2020 without even",,,,

waiting for completion of the due date as per the Advt issued in accordance with regulations. Whereas the total claims received as on the due date of,,,,

29th June 2020 is approx Rs 563.60 Crores and claims received as on 26th June 2020 is approx Rs 125.61 Crores and claims received between 27 and,,,,

29th June 2020 is Rs 438 crores. Since the CIRP is a process in REM as held by the Hon’ble Supreme Court as discussed supra and considering,,,,

the past history of the Corporate Debtor and its inability to pay few crores of rupees, even some lakhs of rupees as dues and huge amount of claims",,,,

received (Approx. Rs 563.60 Crores) in this case, exercising powers under Rule 11 of NCLT Rules, 2016 for permitting withdrawal may not be",,,,

desirable. This is the 3rd petition being dealt by this Tribunal/ Adjudicating Authority against the same Corporate Debtor (which also consumes,,,,

considerable time of this Tribunal). As per the mandate/preamble of Insolvency and Bankruptcy Code, 2016 considering the financial distress, financial",,,,

position of the Corporate Debtor, it’s a fit case for admitting to evolve a Resolution Process.",,,,

Further by exercising the powers under Rule 11 of NCLT Rules, in my considered view a cost of Rs 10 Lakhs may also be levied on the",,,,

Corporate Debtor and the same to be paid to account of PM-CARES Fund within 3 weeks from the date of receipt of copy of this order and report,,,,

compliance to this registry.,,,,

Further I am also of the considered view that suitable action be initiated against the IRP because he did not even wait for the last date to be,,,,

completed to receive claims as per his own Public Advt inviting claims before filing withdrawal application under Section 12A of the Code read with,,,,

Regulation 30A (3) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. From",,,,

the table its noted that total claims received as on the last date is approx Rs 563.60 Crores whereas the dues of the petitioner operational creditor is,,,,

settled at Rs 21 Lakhs. Considering the facts of the matter, Adjudicating Authority also fails to understand the urgency in filing this application by IRP",,,,

for withdrawal. Therefore, this matter may be referred to Insolvency and Bankruptcy Board of India, the Regulator to initiate suitable action against",,,,

the Resolution Professional Mr. Shailesh Bhalchandra Desai.,,,,

ORDER,,,,

The CP (IB) No. 3010/MB/2019 is dismissed with the above directions cost of Rs 10 lakhs to be paid by the Corporate Debtor in to the account of,,,,

“PM-CARES Fund†within 3 weeks from the date of receipt of copy of this order and report compliance to this registry and referring the matter,,,,

to IBBI for initiating suitable against the Resolution Professional Mr. Shailesh Bhalchandra Desai.,,,,

Sd/-,,,,

RAVIKUMAR DURAISAMY,,,,

 MEMBER (TECHNICAL),,,,

In view of the divergent opinion as above the following points need to be answered by a larger Bench or by the Hon’ble President, as the case",,,,

may be.,,,,

i. Whether the IRP can withhold an Application to the Adjudicating Authority after the Application in Form FA is submitted by the Creditor for,,,,

withdrawal of the Company Petition?,,,,

ii. Whether the IRP is prohibited from making an Application under Section 12A of the Insolvency and Bankruptcy Code read with Regulation 30A of,,,,

the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, after the issue of the public advertisement under Section 13 of the",,,,

Code read with Regulation 6 of the Regulations in Form A and before the last date for submission of the claims?,,,,

iii. If such an Application is made, would it amount to misconduct on the part of the IRP?",,,,

iv. Whether Adjudicating Authority has power to direct settlement of outstanding claims of other creditors who are not before it nor notices have been,,,,

issued to them?,,,,

The matter be sent to the Hon’ble President under Section 419(5) of the Companies Act, 2013 for necessary orders.",,,,