2021 (2) TMI 872 - Board - Insolvency and Bankruptcy

Professional misconduct - Validity of accepting the assignment as the Interim Resolution Professional (IRP) in the Corporate Insolvency Resolution Process (CIRP) of MLP Developers Promoters Private Limited after 31st December 2019 without holding a valid Authorisation for Assignment (AFA) issued to him by his IPA - Regulation 7A of IP regulations - HELD THAT - It is clear from Regulation 7A that one of the essential conditions for undertaking any assignment by an IP is that he should have a valid AFA which is issued by the IPA with which he is enrolled. In other words, without AFA, an IP is not eligible to undertake assignments or conduct various processes thereof. Regulation 7A was inserted in the IP Regulations vide notification dated 23rd July 2019, much before 31st December, 2019. Adequate time was given to the professionals to obtain AFA from respective IPAs - The bye-laws of Indian Institute of Insolvency Professionals of ICAI defines in para 4(1)(aa) the expression authorisation for assignment means an authorisation to undertake an assignment, issued by an insolvency professional agency to an insolvency professional, who is its professional member, in accordance with its bye-laws. An application for grant of AFA can be made to the IPA under para 12A of said bye-laws. The credibility of the processes under the Code depends upon the observance of the Code of conduct by the IRP/RP/Liquidator during the process. Section 208(2) of the Code provides that every IP shall take reasonable care and diligence while performing his duties and to perform his functions in such manner and subject to such conditions as may be specified. Further, the Code of Conduct specified in the First Schedule of the IP Regulations enumerates a list of code of conduct for insolvency professionals including maintaining of integrity and professional competence for rendering professional service, representation of correct facts and correcting misapprehension, not to conceal material information and not to act with mala fide or with negligence - In the present matter it is observed that, Mr. Sawhney had provided his consent to accept the assignment in Form-2 on 5-4-2019 prior to the amendment made to IP regulation for acceptance of assignment in matter CIRP of MLP Developers Promoters Private Limited before 31-12-2020. However, it is observed that the date of commencement of the CIRP is 27-1-2020. In view of the fact that the Indian Institute of Insolvency Professionals of ICAI has already taken disciplinary action against Mr. Sawhney, the DC, in exercise of the powers conferred under Regulation 11 of the IBBI (Insolvency Professionals) Regulations, 2016, disposes of the SCN without any direction against Mr. Romesh Chander Sawhney - SCN disposed off.

Summary

Issues:
Violation of sections 208(2)(a) and 208(2)(e) of the Insolvency and Bankruptcy Code, 2016, and regulations 7(2)(a), 7(2)(h), and 7A of the Insolvency and Bankruptcy Board of India (Insolvency Professionals) Regulations, 2016 by an Insolvency Professional.

Analysis:

1. Show Cause Notice (SCN) Issued:
The Insolvency and Bankruptcy Board of India (IBBI) issued a Show Cause Notice (SCN) to an Insolvency Professional (IP), Mr. Romesh Chander Sawhney, for accepting an assignment without a valid Authorisation for Assignment (AFA) after 31st December 2019. Mr. Sawhney responded to the SCN, leading to a hearing before the Disciplinary Committee (DC) for further review.

2. Alleged Contraventions:
The SCN alleged contraventions of specific sections and regulations, including sections 208(2)(a) and 208(2)(e) of the Code, and regulations 7(2)(a), 7(2)(h), and 7A of the IP Regulations. The allegations were related to accepting an assignment without a valid AFA from the Insolvency Professional Agency (IPA).

3. Submissions by Mr. Sawhney:
Mr. Sawhney's submissions highlighted his unintentional procedural lapse due to health issues, his application for AFA rectification, and his commitment to compliance with regulations and professional conduct. The IPA also issued a show cause notice and found Mr. Sawhney not guilty of Professional Misconduct.

4. Analysis and Findings by the Disciplinary Committee (DC):
The DC analyzed the relevant regulations, including Regulation 7A, which mandates IP to hold a valid AFA before undertaking assignments after 31st December 2019. It was noted that Mr. Sawhney's registration was subject to compliance with the Code, regulations, and IPA bye-laws. The DC emphasized the importance of adherence to the Code of Conduct for insolvency professionals to maintain process credibility.

5. Order and Disposal of SCN:
Considering the IPA's disciplinary action against Mr. Sawhney and the findings of the DC, the SCN was disposed of without any direction against Mr. Sawhney. The Order was forwarded to the IPA and the National Company Law Tribunal for information, ultimately resolving the show cause notice issue.

This detailed analysis of the legal judgment involving an Insolvency Professional showcases the regulatory framework, compliance obligations, and disciplinary actions within the insolvency and bankruptcy domain.