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TMI Blog2021 (11) TMI 795X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of IRP Liquidator, Resolution Professional and Bankruptcy Trustee. As such, when the Adjudicating Authority had exercised its judicial discretion in fair manner for the appointment of Mr. Anil Kohli as an IRP , the same cannot be found fault with as opined by this Tribunal . Appeal dismissed. X X X X Extracts X X X X X X X X Extracts X X X X ..... Creditor may, either by himself or through a Resolution Professional file an Application for initiating 'Insolvency Resolution Process' against the 'Personal Guarantor' or a Partnership Firm. Also, that it is the stand of the Appellants that even Application under Section 95 of 'IBC' is filed through Resolution Professional, as in the instant case, then Section 97(1) & (2) of the 'IBC' can get attracted. In this connection, the Learned Counsel for the Appellants refers to Section 97(1),97(2) & 97(5) of the IBC which runs as under: "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. (5) The creditor shall also provide a copy of the application made under sub-section (1) to the debtor." 9. It is the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ides this, the 'Impugned Orders' had relied on 96(1)(a) of "IBC' and that the 'Adjudicating Authority' had appointed Mr. Anil Kohli as the 'IRP'. 12. The prime submission of the Learned Counsel of the Appellants is that the word 'shall' has been employed in Section 97 of 'IBC' is a mandatory character of the legislative intent and in short Sections 97(1) & 97(2) of 'IBC' are mandatory pre-condition which ought to be satisfied before the 'Adjudicating Authority' can proceed to pass order under Section 97(5) of 'IBC'. 13. The Learned Counsel for the Appellants comes out with the plea that when a statute prescribes certain formalities to be complied with, those prescribed formalities are very much essential to do something which is mandatory in nature and the same cannot be simply ignored or given a goby in haste and in this connection the Learned Counsel for the Appellants places reliance on the decision of the Hon'ble Supreme Court of India in the matter of 'The State of Haryana and Anr. Versus Raghubir Das' reported in (1) (1995)1SCC 133 and in 'Mohan Singh & Ors. Vs. International Airport Authority' in (1997) 9 SCC 132. 14. The Learned Counsel for the Appellants takes a state t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may entail 2-3 weeks, which could be saved if the AA has a ready Panel of IPs recommended by the Board and it can pick up any name from the Panel for appointment while issuing the Order itself. 6. Given that every IP is equally qualified to be appointed as the IRP, Liquidator, RP or BT of any corporate or individual insolvency resolution, liquidation or bankruptcy process, as the case may be, if otherwise no disqualified and the in the interest of avoiding administrative delays, the Board considers necessary to have these guidelines to prepare a Panel of IPs for the purpose of section 16(4), 34(6), 97(4), 98(3), 125(4), 146(3) and 147(3)." 17) The Learned Counsel for the Respondents refers to serial No. 2 of the Guidelines which mentions as under: "2. The Board has been making available Panels of IPs to the AA for appointment as IRP or Liquidator, as the case may be. Such Panels in advance by the Board has been found useful as indicated below: (a) The AA in its order dated January 8, 2018 in Innovsource Private Limited Vs. Getit Grocery Private Limited observed: "The Insolvency and Bankruptcy Board of India vide its letter dated 01.01.2018 has recommended a Panel of ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abase of the 'Insolvency Professional's, including information about disciplinary proceedings against them, with the Adjudicating Authority from time to time. (2) For the purposes of subsection (4) of section 97and subsection (3) of section 98, the Board may share a panel of 27 Company Appeal (AT) (Insolvency) No. 316 of 2021 & 317 of 2021 'Insolvency Professional's, who may be appointed as resolution professionals, with the Adjudicating Authority. 28. It is argued by the Learned Counsel for the Respondent that the IBBI from time to time puts on its database particulars regarding the 'Insolvency Professional's including information regarding disciplinary proceedings against them and that the panel of the 'Insolvency Professional's is shared with the Adjudicating Authorities and such procedure helps the Adjudicating Authorities take timely action in the proceedings and the Adjudicating Authority in the present matters could appoint the Resolution Professional through whom the application under Section 95 had been filed. 29. Under Section 97(3), where an application under Section 95 is filed by the Creditor himself, and not through the Resolution Professional, the Adjudicating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 116, where implementation and supervision of repayment plan is provided for. Thus, the argument that before report of Resolution Professional the Debtor must get a chance to seek replacement of Resolution Professional and thus notice was required to be given has no substance. It is only after the Resolution Professional is appointed by the 'Adjudicating Authority' under Section 97(5), that step under Section 98 is contemplated." 22. The Learned Counsel for the Respondents points out that the Appellants by placing reliance upon the order dated 06.01.2001 in 'State Bank of India V. Sagufta Kang' vide (IB)/94/PB/2020 furthered the case of the Respondent/Bank as the Respondent/Resolution Profession was appointed as the Resolution Professional in the said matter by the ''Adjudicating Authority'' (Principal Bench) wherein it is observed as follows: "It is an application moved by the Resolution Professional on the creditor behalf for appointment of Mr. Anil Kohil [IBBI/IPA-001/IP-P00112/2017-18/10219] because in the earlier order appoint of the Resolution Professional is missed out. Elaborate order has already been passed under section 95 of the Code. Upon having found that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the word 'shall' in Section 97 of 'IBC' cannot be mandatory as it is evident from the fact that from time to time, the IBBI releases the guidelines being the 'Insolvency Professionals' to act as Interim Resolution Profession, Liquidator, Resolution Professional, Bank Trust Trustees (Recommendation) coupled with Rule 8(1) of the Insolvency and Bankruptcy (Application to 'Adjudicating Authority' for Insolvency Resolution Process for Personal Guarantor to Corporate Debtor) Rules, 2019. 27. The Core pleas of the Appellants in these two Appeals are that the 'Impugned Orders' 23.07.2021 in I.A.(IBC) No. 346 of 2021 CP(IB) No. 02/95/HDB/2021 and I.A.(IBC) No. 347 of 2021 in CP(IB) No. 03/95/HDB/2021 are silent on the List/panel of 'Insolvency Professional' as enumerated by IBBI and that Section 95(1) of 'IBC' provides that a Creditor may apply either by himself or jointly with other Creditors or through Resolution Professional may file an application to the ''Adjudicating Authority'' for initiation of CIRP and that as per Section 97(1) of 'IBC', if the Application under Section 94 or 95 is filed through the Resolution Professional, the ''Adjudicating Authority'' shall direct the Board w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Bankruptcy (Application to Adjudicating Authority for Insolvency Resolution Process for Personal Guarantors to Corporate Debtors) Rules, 2019 that the Board may share database containing the relevant details in regard to the Resolution Professional to enable the 'Adjudicating Authority' to appoint of 'Resolution Professional' in a time bound manner. 30. On behalf of the Respondents, it is brought to the notice of this 'Tribunal' that the Appellants had filed I.A. No. 414 of 2021 (under Section 98 of 'IBC') to replace 'Resolution Professional'. 31. To be noted, that the 'Insolvency Professional' to act as 'IRP', Liquidator, Resolution Professional and Bankruptcy Trustee (Recommendation) Guidelines, 2021 at serial no. 7.1 under the caption 'Panel of IPs beginning from serial no. 7.1 to 7.5 which read as under: "Panel of IPs 7.1 The Board will prepare a common Panel of IPs for appointment as IRP, Liquidator, RP and BT and share the same with the AA (Hon'ble NCLT and Hon'ble DRT) in accordance with these Guidelines. 7.2 The Panel will have Zone wise list of IPs based on the registered office (address as registered with the Board) of the IP. 7.3 The Panel will have val ..... X X X X Extracts X X X X X X X X Extracts X X X X
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