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TMI Blog2021 (6) TMI 320X X X X Extracts X X X X X X X X Extracts X X X X ..... y from the Creditor herein to an extent of ₹ 50 Crore repayable within a period of 48 months. For the said facility, the Respondent herein viz. Mr. G. Ramakrishna Reddy stood as a Guarantor vide Deed of Guarantee Agreement dated 28.08.2011 and 28.09.2011 - In relation to Section 95(4)(b), it is seen that the Creditor has issued a Demand Notice on 04.02.2020 as per Rule 7(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority for Insolvency Resolution Process for Personal Guarantors to Corporate Debtor), Rules, 2019, calling upon the Personal Guarantor to pay an amount of ₹ 232,60,41,491/-. Despite receipt of the Demand Notice on 08.02.2020, the Personal Guarantor has failed to repay the outstanding dues and continues to commit default till date - In relation to Section 95(4)(c), it is seen that the Creditor has filed the Final Award passed by the Learned Arbitrator on 13.07.2019 and that in the counter filed by the Respondent/Personal Guarantor he has not denied that the said sum is not payable. This Application filed under Section 95 of IBC, 2016 is complete and a perusal of Part - IV of the Application posits the fact that the Application has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sonal Guarantor of Corporate Debtor is filed by the Creditor before this forum. 3. As far as the present Application is concerned, since it pertains to the Insolvency Resolution Process of Individuals, it is necessary to refer to the relevant provisions of the IBC 2016; 95. Application by creditor to initiate insolvency resolution process.- (1) A creditor may apply either by himself, or jointly with other creditors, or through a resolution professional to the Adjudicating Authority for initiating an insolvency resolution process under this section by submitting an application. (2) A creditor may apply under sub-section (1) in relation to any partnership debt owed to him for initiating an insolvency resolution process against- (a) any one or more partners of the firm; or (b) the firm. (3) Where an application has been made against one partner in a firm, any other application against another partner in the same firm shall be presented in or transferred to the Adjudicating Authority in which the first mentioned application is pending for adjudication and such Adjudicating Authority may give such directions for consolidating the proceedings under the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a resolution professional for the insolvency resolution process. (4) The Board shall nominate a resolution professional within ten days of receiving the direction issued by the Adjudicating Authority under sub-section (3). (5) The Adjudicating Authority shall by order appoint the resolution professional recommended under sub-section (2) or as nominated by the Board under sub-section (4). (6) A resolution professional appointed by the Adjudicating Authority under sub-section (5) shall be provided a copy of the application for insolvency resolution process 5. Upon the Board viz. the Insolvency and Bankruptcy Board of India (IBBI) nominating/confirming the Resolution Professional as per Section 97(1) or (4) of IBC, 2016 as the case may be, the Adjudicating Authority in terms of Section 97(5) of IBC, 2016 is required to appoint such person as the Resolution Professional. Section 98 of IBC, 2016 deals with the Replacement of the Resolution Professional, in case the Creditor or the Debtor is of the opinion that the Resolution Professional appointed under Section 97 of IBC, 2016 is required to be replaced. Thereafter, Section 99 of IBC, 2016 would come into play, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) The resolution professional shall give a copy of the report under sub-section (7) to the debtor or the creditor, as the case may be. 6. Section 99 of IBC, 2016 contemplates that upon appointing the Resolution Professional in terms of Section 97(5) of IBC, 2016, the Resolution Professional is required to examine the Application filed under Section 95 of IBC, 2016 by the Creditor, within 10 days from the date of his appointment and submit a report to the Adjudicating Authority recommending for approval or rejection of the application. The mode in which the Resolution Professional is required to examine the Application is set out in Section 97(6) of IBC, 2016 and after examining the Application, as per Section 97(7) of IBC, 2016 the Resolution Professional may recommend for the acceptance or rejection of the Application in his report. Thereafter, Section 100 of IBC, 2016 explains the further course of action, which is extracted as follows; 100. Admission or rejection of application.- (1) The Adjudicating Authority shall, within fourteen days from the date of submission of the report under section 99 pass an order either admitting or rejecting the application referred to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (b) the failure by the debtor to pay the debt within a period of fourteen days of the service of the notice of demand; and (c) relevant evidence of such default or non-repayment of debt. 9. In relation to Section 95(4)(a), it is seen from the Application filed, that one M/s. Arohi Infrastructure Private Limited(hereinafter referred to as Principal Borrower ) availed financial facility from the Creditor herein to an extent of ₹ 50 Crore repayable within a period of 48 months. For the said facility, the Respondent herein viz. Mr. G. Ramakrishna Reddy stood as a Guarantor vide Deed of Guarantee Agreement dated 28.08.2011 and 28.09.2011. It was submitted that the Principal Borrower has committed default in repayment of the dues and as a result thereof, the account of the Principal Borrower was declared as Non - Performing Asset (NPA) by the Creditor on 19.07.2014. It was further submitted that based upon an Application vide CP/672/IB/2017 filed by the Creditor herein under Section 7 of IBC, 2016, this Adjudicating Authority had initiated the Corporate Insolvency Resolution Process (CIRP) against the Principal Borrower on 20.03.2018 and subsequently the Liquidation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 98, the Board may share the database of the insolvency professionals, including information about disciplinary proceedings against them, with the Adjudicating Authority from time to time. (2) For the purposes of sub-section (4) of section 97 and sub-section (3) of section 98, the Board may share a panel of insolvency professionals, who may be appointed as resolution professionals, with the Adjudicating Authority. 14. Rule 8 of the Insolvency and Bankruptcy (Application to Adjudicating Authority for Insolvency Resolution Process for Personal Guarantors to Corporate Debtor), Rules, 2019 states that the Board may share a database of the Insolvency Professionals, including the information about the disciplinary proceedings against them with the Adjudicating Authority from time to time. However, upon enquiry from the Registry of this Tribunal, it was found that no such database including in relation to disciplinary proceedings, if any, of the insolvency professionals is being shared to the Chennai Bench of NCLT by the Board under the relevant Rules as above. Hence, in this regard, we hereby direct the IBBI also to share the database of the insolvency professionals includin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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