Venugopal Dhoot vs Divyesh Desai

Venugopal Dhoot ...Appellant

Versus

Divyesh Desai Resolution Professional of Trend Electronics Ltd. & Anr. ...Respondents

Present: For Appellant: None

For Respondents: Mr. Krishnendu Datta, Sr. Advocate with Mr. Anand Varma, Mr. Kaustubh Prakash, Ms. Hita Sharma and Ms. Kirti Gupta, Ms. Apoorva Pandey, Advocates for R-1. Mr. Bishwajit Dubey, Mr. Madhav, Mr. Prafful Goyal, Advocates

With

Company Appeal (AT) (Insolvency) No. 541 of 2023

IN THE MATTER OF:

Venugopal Dhoot ...Appellant

Versus

Divyesh Desai Resolution Professional of Trend Electronics Ltd. & Anr. ...Respondents

Present: For Appellant: Mr. Amir Arsiwala, Aarohi Bhalla, Advocates.

For Respondents: Mr. Krishnendu Datta, Sr. Advocate with Mr. Company Appeal (AT) (Insolvency) No. 540 of 2023 & I.A. No.1758 of 2023 Company Appeal (AT) (Insolvency) No. 541 of 2023

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Anand Varma, Mr. Kaustubh Prakash, Ms. Hita Sharma and Ms. Kirti Gupta, Advocates for R-1.

ORDER

10.05.2023: These two appeals have been filed by the same Appellant

challenging the order dated 10.02.2023, by which the application filed by RP

u/s 33(2) for initiation of liquidation process has been allowed and the

application filed by the Appellant praying for closing the CIRP under 12A

has been rejected. The application which has been filed by the Appellant

u/s 12A is the application where the Appellant has made the following

prayers:-

i) "Direct the Respondents to produce the

minutes of the 30th meeting of the CoC of the

Corporate Debtor and to place the same on

record;

ii) Close the CIRP of the Corporate Debtor by

treating the same to have been withdrawn

under Section 12A of the IBC by acceptance of

the restructuring proposal submitted by the

Applicant;

iii) Pending the hearing and final disposal of the

present case, stay all further proceedings in the

CIRP of the Corporate Debtor;

Company Appeal (AT) (Insolvency) No. 540 of 2023 & I.A. No.1758 of 2023 Company Appeal (AT) (Insolvency) No. 541 of 2023

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iv) Any other order that this Hon'ble Tribunal may

deem fit in the facts and circumstances of this

case."

2. The Adjudicating Authority has observed that since 12A application

has not been filed by the IRP, the same cannot be entertained.

3. Learned Counsel for the Appellant submits that Adjudicating

Authority has not considered the application on merit and on a technical

ground, rejected the application.

4. We have considered the submission of the Learned Counsel for the

Appellant and perused the record.

5. The application which was filed u/s 12A is an application where

Appellant has claimed that he has submitted a restructuring proposal which

should be accepted. Section 12A provides as follows:-

"12A. Withdrawal of application admitted

under section 7,9 or 10 - The Adjudicating

Authority may allow the withdrawal of application

admitted under section 7 or section 9 or section 10,

on an application made by the applicant with the

approval of ninety per cent voting share of the

committee of creditors, in such manner as may be

specified."

6. Present is the case where CoC has already been constituted and the

Resolution Plan were under consideration by the CoC. The application filed

Company Appeal (AT) (Insolvency) No. 540 of 2023 & I.A. No.1758 of 2023 Company Appeal (AT) (Insolvency) No. 541 of 2023

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by the Appellant cannot be treated to be an application for settlement u/s

12A.

7. Any proposal for re-structuring cannot be treated to be the proposal

u/s 12A, hence, we do not find any error in rejecting the application filed by

the Appellant. Moreover, there is no consent by 90% of CoC in favour of 12A

proposal of the Appellant.

8. We do not find any error in the order of the Adjudicating Authority,

the appeal is dismissed.

9. It is further to be noted that 12A proposal was actually given by Shri

Pradeep Nandlal Dhoot which was also considered and rejected by CoC in

30th CoC meeting.

[Justice Ashok Bhushan] Chairperson

[Barun Mitra] Member (Technical) ss/nn

Company Appeal (AT) (Insolvency) No. 540 of 2023 & I.A. No.1758 of 2023 Company Appeal (AT) (Insolvency) No. 541 of 2023

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