Suhani and Dhwani are childhood friends and were very fond of designing Indian traditional dresses. After completing their schooling, Suhani joined a fashion designing course to pursue her interest and Dhwani decided to

CS Professional · Insolvency and Bankruptcy - Law and Practice · PYQS · June 2024
Suhani and Dhwani are childhood friends and were very fond of designing Indian traditional dresses. After completing their schooling, Suhani joined a fashion designing course to pursue her interest and Dhwani decided to be a fashion Model. She participated in various fashion show programs conducted by Non-Government Organisation(s) engaged in the creating awareness for cervical cancer which is spreading rapidly among Ladies in India. After some years, in one of the fashion programmes, they met again and planned to form a private Limited Company in the name of Suhani Fashions Private Limited having a paid-up share capital of ₹ 5 Crore and became Entrepreneurs. Suhani Fashions Pvt. Ltd. is engaged in the business of Manufacturing and Selling Ladies Suits and Sarees in Kolkata, West Bengal which is a very big market for Indian traditional dresses. They also offered their products on online e-commerce platforms. They employed more than 100 Ladies and other staff in their workshop who were engaged in designing, cutting, tailoring and other allied works. Suhani also used to design products being sold by the company. Both Suhani and Dhwani were Promoter Directors of the company as per the Article of Association of the company and also the subscribers to the Memorandum of Association of the company by subscribing 50% shares each in the company. Dhwani, being a fashion model, did modelling for her products in order to improve the sales of the company. The company started growing very fast and sales touched a figure of ₹ 20 crores in the very first year and in order to meet the working capital and other requirements, the company approached the bankers Beta bank and Gama Bank for a facility of ₹ 3 crores and ₹ 5 crores respectively. The Company already had taken the credit facilities with Alpha Bank and outstanding amount is ₹ 6 crores. After the change in demand of the products and growing need of Formal dresses from the Indian traditional dresses, sales started declining and the company started facing cash crunch and made a default in paying the instalments for ₹ 2 crores which were outstanding in the name of the Alpha bank. The Alpha bank decided to file an Insolvency Petition under Section 7 of the Insolvency and Bankruptcy Code, 2016 as a financial Creditor on 3rd January, 2024. The Corporate Insolvency Resolution Process application was admitted by the Adjudicating Authority on 25th January, 2024. Moratorium was declared and Ishann was appointed as an Interim Resolution Professional. Ishaan, Interim Resolution Professional made a public announcement and prepared a list of creditors based on the claims received. The CoC is yet to be formed. Consider the above facts and answer the following questions: State, whether any other creditor can initiate proceeding under the Insolvency and Bankruptcy Code, 2016, after the withdrawal of an application for Corporate Insolvency Resolution Process by an applicant ? Discuss with the help of the case laws.

Answer & Explanation:

In the case of Ashok G. Rajani Vs. Beacon Trusteeship Ltd. & Ors. (Sep 2022), Hon'ble Supreme Court held that the question of approval of withdrawal of corporate insolvency resolution process by the Committee of Creditors by the requisite percentage of votes, can only arise after the Committee of Creditors is constituted. Before the Committee of Creditors is constituted, there is no bar to withdrawal by the applicant of an application admitted under Section 7 of the Code. Also, the withdrawal of an application for Corporate Insolvency Resolution Process by the applicant would not prevent any other financial creditor from taking recourse to a proceeding under Insolvency and Bankruptcy Code, 2016. Hence, the withdrawal of an application for CIRP by the applicant would not prevent any other financial creditor from taking recourse to a proceeding under Insolvency and Bankruptcy Code, 2016.

Topics: Corporate Insolvency Resolution Process (CIRP)

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