Noor Alam & Ors vs Partha Kamal Sen & Ors

Present: For Appellant : Mr. Puneet Singh Bindra, Ms. Simran Jeet and Mr. Kavish Kejriwal, Advocates

WITH

Company Appeal (AT) (Insolvency) No. 904 of 2019

IN THE MATTER OF:

Noor Alam & Ors. ...Appellants

Versus

Parth Kamal Sen & Ors. ...Respondents

Present: For Appellant : Mr. Abishek Anand and Mr. Mohan Sharma, Advocates

ORDER

03.09.2019 An application under Section 12A of the 'Insolvency and

Bankruptcy Code, 2016 (for short, 'the I&B Code') was placed by the 'Resolution

Professional' before the 'Committee of Creditors', which had not been approved

the 'Terms and Conditions' with 90% voting shares and thereby, refused to allow 2

the Applicant/Appellant - 'Mr. Noor Alam' to withdraw the application under

Section 7 of the 'I&B Code'.

2. When the matter was placed before the Adjudicating Authority (National

Company Law Tribunal), Kolkata Bench, Kolkata, the Adjudicating Authority by

impugned order dated 30th July, 2019 rejected the application for withdrawal

taking into consideration the fact that there is no consensus amongst the

creditors of the 'Corporate Debtor' for withdrawal of the proceedings. The

Adjudicating Authority further observed that if the withdrawal is allowed, then

the members of the 'Committee of Creditors' will not get their claims.

3. Learned counsel appearing on behalf of the Appellant -'Mr. Kaushik

Ghosh' and the Applicant - 'Mr. Noor Alam' submitted that the Authorised

Representative of the 'Financial Creditors' (Debenture Holders) had not acted in

accordance with the provisions of Section 25A of the 'I&B Code'. If voting would

have been conducted in proper manner after circulating to all the creditors in

terms of Section 25A(2), then the term as proposed in Section 12A of the I&B

Code would have been approved with more than 90% of the voting share.

4. Learned counsel appearing on behalf of the Appellant - 'Mr. Noor Alam'

submitted that one Mr. Pankaj Agarwal was engaged as Authorised

Representative by the Appellants as it was impossible for the Appellants to be

present in Kolkata for the hearings/meetings of the 'Committee of Creditors'. He

assured the Appellants are appropriately and suitably represented in order to

protect the rights of the 'Corporate Debtor'. It is further informed that the said

Authorised Representative had not given information undertaken in the

meetings of the 'Committee of Creditors'. The Adjudicating Authority has also

noticed that one Mr. Sneha Khaitan was made Chairperson to call meeting of all

Company Appeal (AT) (Insolvency) Nos. 842 & 904 of 2019 3

the creditors of the 'Corporate Debtor' and as they were more than 25,000 in

numbers and their representatives were not in a position to take proper direction

and to ascertain whether 90% of them intend to approve the withdrawal or not.

Special Officer filed a report in a sealed cover stating that 75.5% creditors agreed

for withdrawal whereas 24.95% voted against the withdrawal.

5. It is submitted on behalf of the Appellant that the Authorised

Representative has not taken any opinion of the 'Financial Creditors'. When it

is such case, it was even otherwise a fit case to reject the application filed under

Section 12A for withdrawal of application under Section 7 of the I&B Code.

We find no merits in these appeals. They are, accordingly, dismissed. No

costs.

[Justice S.J. Mukhopadhaya] Chairperson

[ Justice A.I.S. Cheema ] Member (Judicial)

[ Kanthi Narahari ] Member (Technical) /ns/gc

Company Appeal (AT) (Insolvency) Nos. 842 & 904 of 2019