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TMI Blog2017 (10) TMI 569X X X X Extracts X X X X X X X X Extracts X X X X ..... ake a reference to the Board for a recommendation of an Insolvency professional, in the case of an operational creditor, there is no such provision in the case of a financial creditor. The instant application has been filed under section 7 of IBC as a financial creditor. The applicant financial creditor has not proposed the name of any insolvency professional and thus, has not fulfilled the requirement as in sub-section 3 (b) of section 7 of the Code, which reads as follows: - 'The financial creditor shall, along with the application furnish - (a) Record of the default recorded with the information utility or such other record or evidence of default as may be specified' (b) the name of the resolution professional proposed toact as an interim resolution professional; and (c) any other information as may be specified by the Board." Hence, we are unable to admit the application for insolvency as the same is not complete. Application is dismissed." 2. Ld. Counsel for the appellant submits that the appellant had proposed the name of the 'Interim Resolution Professional' and referred to Part-Ill of the application filed under section 7 in format to suggest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s against a corporate debtor before the Adjudicating Authority when a default has occurred. Explanation. -For the purposes of this subsection, a default includes a default in respect of a financial debt owed not only to the applicant financial creditor but to any other financial creditor of the corporate debtor. (2) The financial creditor shall make an application under sub-section (1) in such form and manner and accompanied with such fee as may be prescribed. (3) The financial creditor shall, along with the application furnish- (a) record of the default recorded with the information utility or such other record or evidence of default as may be specified; (b) the name of the resolution professional proposed to act as an interim resolution professional; and (c) any other information as may be specified by the Board. (4) The Adjudicating Authority shall, within fourteen days of the receipt of the application under sub-section (2), ascertain the existence of a default from the records of an information utility or on the basis of other evidence furnished by the financial creditor under subsection (3)." 8. However, under sub-section (4) of Section 9 an 'Operational ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xxx 9. From the aforesaid provision, it is clear that the 'Operational Creditor' may provide the name of an 'Interim Resolution Professional' and in a particular case, the 'Operational Creditor' may not provide the name of the 'Operational Creditor'. 10. In so far the 'Corporate Applicant' is concerned, in their case provision has been made under clause (b) of sub-section (3) of Section 10 to furnish the name of 'Interim Resolution Professional', as quoted below: - "10. Initiation of corporate insolvency resolution process by corporate applicant. - (1) Where a corporate debtor has committed a default, a corporate applicant thereof may file an application for initiating corporate insolvency resolution process with the Adjudicating Authority. (2) The application under sub-section (1) shall be filed in such form, containing such particulars and in such manner and accompanied with such fee as may be prescribed. (3) The corporate applicant shall, along with the application furnish the information re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion under section 7 or section 10, shall be appointed as the interim resolution professional, if no disciplinary proceedings are pending against him. (3) Where the application for corporate insolvency resolution process is made by an operational creditor and- (a) no proposal for an interim resolution professional is made, the Adjudicating Authority shall make a reference to the Board for the recommendation of an insolvency professional who may act as an interim resolution professional; (b) aproposal for an interim resolution professional is made under sub-section (4) of section 9, the resolution professional as proposed, shall be appointed as the interim resolution professional, if no disciplinary proceedings are pending against him. (4) The Board shall, within ten days of the receipt of a reference from the Adjudicating Authority under sub-section (3), recommend the name of an insolvency professional to the Adjudicating Authority against whom no disciplinary proceedings are pending. (5) The term of the interim resolution professional shall not exceed thirty days from date of his appointment." 14. From sub-section (2) of Section 16, it is clear that the 'Interim Res ..... X X X X Extracts X X X X X X X X Extracts X X X X
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