NCLT Hyderabad (04.01.2021) in Wincere Inc. & Another Vs Cybermate Infotek Ltd . [IA No. 1056 Of 2020 In CP(IB) No. 215/07/HYD/2017] held that;
In view of settlement entered into between both the parties and the assurance given that the balance of CIRP costs will be paid within three days from the date of receipt of the withdrawal order passed under Section 12A, the Applicant prayed the Tribunal to permit the Financial Creditor to withdraw the Petition.
By exercising the power conferred upon the Adjudicating Authority under Section 12A Read with Regulation 30A of IBBI (Insolvency Resolution Process for Corporate Persons) 2016 permission can be granted to the Applicant / Financial Creditor to withdraw the application
Accordingly IA No. 1056/2020 is allowed. CP (IB) No.215/7/HDB/2019 is disposed of as withdrawn under Section 12A of Insolvency and Bankruptcy Code, 2016.
Facts of the case;
Tribunal, while admitting the petition bearing CP (IB) No. 215/7/HDB/2017 under Section 7 of the IBC ordered initiation of Corporate Insolvency Resolution Process (CIRP proceedings) against the Corporate Debtor Cybermate Infotek Ltd. vide order dated 26-03-2018.
Subsequently an application bearing IA No. 465 of 2020 was preferred by Resolution Professional seeking liquidation of the Corporate Debtor as per the unanimous decision taken by the Committee of Creditors in its 3rd COC Meeting.
Resolution Professional, the Applicant herein conducted 6th CoC meeting on 05.09.2020, wherein the members of CoC after carefully analyzing the factual situation and further to ensure that the Corporate Debtor remains a going concern, unanimously resolved to withdraw IA.No. 465 of 2020 which was filed seeking liquidation of the company. The same is pending adjudication by the Adjudicating Authority
Excerpts of the order;
# 1. This Application is filed under Section 12A of Insolvency & Bankruptcy Code, 2016 (IBC) seeking withdrawal of the company petition bearing CP(IB) No.215/07/HDB/2017 as parties to the petition have unanimously decided to settle the disputes that arose between them and the debt of the financial creditors are satisfactorily cleared by the CDR.
# 2. Facts relevant to the Application in brief are:
# 2.1 This Tribunal, while admitting the petition bearing CP (IB) No. 215/7/HDB/2017 filed by Wincere Inc., (A company registered under the laws of United States of America) under Section 7 of the IBC ordered initiation of Corporate Insolvency Resolution Process (CIRP proceedings) against the Corporate Debtor Cybermate Infotek Ltd. vide order dated 26-03-2018. By virtue of the said order, Dr. K. Lakshmi Narasimha, Ph.D (Law), Advocate & Insolvency Professional was appointed as Interim Resolution Professional who took charge from 30 03-2018.
# 2.4 Subsequently an application bearing IA No. 465 of 2020 was preferred by Resolution Professional seeking liquidation of the Corporate Debtor as per the unanimous decision taken by the Committee of Creditors in its 3rd COC Meeting.
# 2.5 In the meantime, Dr. K. Lakshmi Narasimha, expressed his unwillingness to continue as the resolution professional and sought directions of this Tribunal to relieve him from the duties of Resolution Professional which was allowed by this Tribunal vide order dated:20.07.2020 and appointed the Applicant herein Shri K.K.Rao, as resolution professional.
# 2.6 Immediately on his taking over charge as Resolution Professional, the Applicant herein conducted 6th CoC meeting on 05.09.2020, wherein the members of CoC after carefully analyzing the factual situation and further to ensure that the Corporate Debtor remains a going concern, unanimously resolved to withdraw IA.No. 465 of 2020 which was filed seeking liquidation of the company. The same is pending adjudication by the Adjudicating Authority.
# 2.7 While things stood thus, all the parties i.e., the CDR and the CoC, desired to resolve the matter amicably and in pursuant to the same entered into a compromise settlement agreement on 07-10-2020 which is annexed along with the Application.
# 2.8 It is averred in the 6th CoC meeting, the CIRP cost as at 02.11.2020 was placed before the CoC by the Applicant herein and CoC approved the same except the professional fees claimed by the erstwhile Resolution Professional viz. Dr. K Lakshminarasimha amounting to Rs. 43.50 (Rupees Forth Three Lakhs Fifty Thousand Only). The same is being challenged by one of the Creditors of CoC viz. Mr. Himanshu Kansara by preferring IA No. 908 of 2020. The said IA is disposed of simultaneously directing to pay Rs. 10,00,000/- to the erstwhile Resolution Professional.
# 2.9 It is further averred that the CoC and one of the Directors of the CD has prepared the Bank Guarantee for an amount of Rs. 6,01,228/- (Rupees Six Lakhs One Thousand Two Hundred and Twenty Eight Only) towards amount payable to the erstwhile RP, further with an undertaking that they would be discharging the liability of the erstwhile Resolution Professional in the event of any higher amount payable to him after receipt of the orders of this Tribunal or Appellate Tribunal and instructed the RP to move an application U/s 12A. The copy of the Bank Guarantee for Rs. 6,01,228/- (Rupees Six Lakhs One Thousand Two Hundred and Twenty Eight Only) as well as the undertaking given by the member of CoC and one of the Directors of the CD are attached.
# 3. We heard the Counsel for Resolution Professional through video conference. The Counsel for Resolution Professional/ Applicant herein would contend that this Tribunal admitted the petition filed under Section 9 of IBC, 2016 on 26.03.2018 for initiation of CIRP against Corporate Debtor and appointed IRP. The Counsel would contend, immediately on passing admission order, one of the promoters filed appeal in Hon'ble NCLAT and thereupon in Hon'ble Supreme Court. Hon'ble Supreme Court remanded the matter to Hon'ble NCLAT, which vide its order dated 22.05.2020 dismissed the appeal and matter was reverted back on the file of this Tribunal with a direction to commence the CIRP against the Corporate Debtor. Immediately, 1st CoC meeting was convened on 27.05.2020 and IRP was confirmed as Resolution Professional.
# 4. While things stood thus, Dr. K. Lakshmi Narasimha, Resolution Professional expressed his unwillingness to continue as Resolution Professional and this Tribunal vide order dated 20.07.2020 replaced him with Mr. K.K. Rao, Applicant herein. In the CoC meeting held on 05.09.2020, the CoC members unanimously resolved to liquidate the Company and instructed the Applicant herein to move an application to this Tribunal. Later on a decision was taken by the CoC members “to not press” for liquidation but to seek withdrawal of the petition as the parties felt no useful purpose would be served if the Company is liquidated. The Learned Counsel appearing for the Applicant would contend the matter is resolved amicably between the parties and to ensure that the Corporate Debtor remains as a going concern. We have perused the compromise settlement agreement on 07.10.2020 and the Bank Guarantee furnished by one of the Director of the CD and the CoC to the tune of Rs. 6.01,228/- towards the amount payable to the erstwhile Resolution Professional. The Learned Counsel for Applicant relied on Regulation 30-A of CIRP Regulations which provides that the CoC is required to make payment of the entire amount of CIRP costs or furnish BG till the date of filing application and further stated that COC has made part payment of the CIRP costs.
# 5. The procedure prescribed under Regulation 30A of IBBI (Insolvency Resolution Process for Corporate Persons), 2016 has been followed.
7. In view of settlement entered into between both the parties and the assurance given that the balance of CIRP costs will be paid within three days from the date of receipt of the withdrawal order passed under Section 12A, the Applicant prayed the Tribunal to permit the Financial Creditor to withdraw the Petition.
# 8. By exercising the power conferred upon the Adjudicating Authority under Section 12A Read with Regulation 30A of IBBI (Insolvency Resolution Process for Corporate Persons) 2016 permission can be granted to the Applicant / Financial Creditor to withdraw the application
# 9. Accordingly IA No. 1056/2020 is allowed. CP (IB) No.215/7/HDB/2019 is disposed of as withdrawn under Section 12A of Insolvency and Bankruptcy Code, 2016.
# 10. The Moratorium under Section 14 stands vacated. The Corporate Debtor is allowed to function independently through its Board of Directors with immediate effect.
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