Asif Abdullah Dalwai vs Arun Bagaria

Asif Abdullah Dalwai ....Appellant Vs. Arun Bagaria, Interim Resolution Professional of ...Respondent Windals Auto Pvt. Ltd. & Anr.

For Appellant: Ms. Prachi Johri and Lakshya Sachdeva, Advocates

For Respondent: Mr. Arun Bagaria, IRP in person Mr. H.P. Kar, Intervener

ORDER

(Virtual Mode)

11.01.2022: Heard Learned Counsel for the Appellant as well as

Resolution Professional appearing in person and Learned Counsel for the

Intervener.

2. This Appeal has been filed against the Judgment and Order dated 30th

September, 2021 passed by Adjudicating Authority (National Company Law

Tribunal, Mumbai Bench, Court-IV) in IA-1952/2021 in CP(IB)-

3221(MB)/2019 by which Order, the Adjudicating Authority dismissed the

Application and directed the IRP to get withdrawal of CIRP approved from the

Committee of Creditors and thus the Appellant is aggrieved by the said

Order.

3. Learned Counsel for the Appellant submits that in the present case by

Order dated 2nd August, 2021 in CP (IB) No. 3221/MB-IV/2019, Corporate 2

Debtor was admitted into Insolvency and public announcement was made on

07th August, 2021. On 24 August, 2021, an Application being I.A. No.

1952/2021 was filed for withdrawal of the CIRP under Section 12A of

Insolvency and Bankruptcy Code, 2016 (hereinafter referred as 'Code') by the

IRP before the Adjudicating Authority along with Form-FA. The Application of

withdrawal was listed on 06.09.2021 but due to paucity of time the matter

could not be heard. On 24.09.2021 CoC was constituted and first meeting of

COC was held on 29.09.2021.

4. The Submission of Learned Counsel for the Appellant is that when the

Application was filed prior to constitution of CoC there was no requirement

for approval of the CoC. Learned Counsel for the Intervener submits that

there are huge claim of Financial Creditors and hence the matter need to be

sent back to the CoC for its consent.

5. Resolution Professional has also filed Status Report where the dates on

which the Application was filed i.e.14th August, 2021 and Constitution of

CoC is on 24.09.2021 has been stated.

6. This Tribunal has already delivered a Judgment on 07th January,

2022 in Company Appeal (AT) ins. No. 892 of 2021 in the matter of 'M/s

Ashish Ispat Pvt. Ltd. Vs Primuss Pipes And Tubes Ltd.' holding that when the

Application under Section 12A of the Code has been filed prior to

Constitution of CoC there is no requirement of obtaining consent of the CoC

as required by Section 12A of the Code. The issue which has been raised is

fully covered by the Judgment of this Tribunal delivered on 07.01.2022. In

Comp. App. (AT) (Ins.) No. 958 of 2021 3

view of the aforesaid, we are of the view that the Order passed by

Adjudicating Authority directing withdrawal application be placed before the

CoC is uncalled for. We set aside the Order dated 30th September, 2021 and

direct that the Application filed by IRP under Section 12A of the Code be

considered and appropriate order be passed by the Adjudicating Authority at

the earliest.

7. With the above observations, the Appeal is allowed. It is open for the

Financial Creditors to file Application under Section 7 of the IBC if so

advised.

8. We having set aside the Order dated 30th September, 2021, we are of

the view that till the NCLT passes order under section 12A application, no

further steps be taken in the CIRP Process.

[Justice Ashok Bhushan] Chairperson

[Dr. Ashok Kumar Mishra] Member (Technical)

Basant/nn

Comp. App. (AT) (Ins.) No. 958 of 2021