An application under section 9 of the Insolvency and Bankruptcy Code (IBC), 2016 was filed by N, operational creditor of Delta Pvt. Ltd. and was admitted by the NCLT on 30th July, 2024. Later on, the parties amicably set

Yes, the appeal is tenable. The facts of the case are similar to the facts in M/s. Ashish Ispat Pvt. Ltd. v. Primuss Pipes and Tubes Ltd. In case of M/s. Ashish Ispat Pvt. Ltd. v. Primuss Pipes and Tubes Ltd. , an application under section 9 of the Insolvency & Bankruptcy Code was admitted by the NCLT and after issuance of Form-A, the parties amicably settled the dispute and executed a Memorandum of Understanding. In light of settlement, Form-FA was received by the IRP for withdrawal of the Application in terms of Section 12A of the Code read with Regulation 30A. Accordingly, an Application for withdrawal was filed by the IRP before NCLT. During pendency of said Application, a CoC was constituted and the one meeting of CoC was also held. Thereafter, the NCLT observing that there being two Financial Creditors out of which one having 17% of voting shares has dissented to allow withdrawal, the Application for withdrawal cannot be considered unless the consent from CoC as required under the statute, is obtained. Hence, the Appellants and the Suspended Director of Corporate Debtor both aggrieved by the said order filed two Appeals. The Hon'ble NCLAT held that when the Application under Section 12A was filed for withdrawal, the CoC was not constituted and hence there was no requirement of approval of 90% of voting share of CoC. Further Regulation 30A also makes it clear that when an application is filed prior to constitution of CoC, the requirement of 90% vote of CoC is not applicable and the NCLT has to consider the Application without requiring approval by 90% vote of the CoC. Thus, the Hon'ble NCLAT relying on the judgment of the Hon'ble Supreme Court in the matter of Kamal K. Singh vs. Dinesh Gupta & Anr. and its previous judgments in the matters of Anuj Tejpal vs. Rakesh Yadav & Anr. and Sunil Tandon v Manoj Kumar Anand, IRP & Ors. held that the NCLT without considering the facts and sequence of the events had refused to entertain the Application on the ground that it is not supported by 90% vote of CoC. Thus, the present Appeals were allowed permitting withdrawal of CIRP.