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TMI Blog2022 (3) TMI 819X X X X Extracts X X X X X X X X Extracts X X X X ..... ther it is observed that a demand notice has already been sent and the respondent had appeared, therefore, there was no occasion for issuance of notice. Further it is noticed that the applicant has also proposed the name of Resolution Professional at Page 41 Part-IV of the application; therefore, the applicant has fulfilled all the criteria, as laid down Under Section 95(4), hence, the matter is proceeded in accordance with law. Application allowed. - (IB) 54 (ND)/2022 - - - Dated:- 11-3-2022 - Abni Ranjan Kumar Sinha, Member (J) And Avinash K. Srivastava, Member (T) For the Appellant : Anand Shankar Jha, Girish Bhardwaj and Shubham Tripathi, Advs. For the Respondents : Rajiv K. Virmani, Karan Valecha and Shivankar Rao, Advs. ORDER Abni Ranjan Kumar Sinha, Member (J) 1. The present petition has been filed under Section 95 of the Insolvency Bankruptcy Code, 2016, (hereinafter referred to as the Code ), by Yes Bank Ltd. praying for initiation of Insolvency Resolution Process against Mr. Mahendra Kumar Jajoo, who is the Director as well as the Personal Guarantor of the Corporate Debtor i.e. Emkay Automobiles Industries Limited. 2. The facts mentioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... int Phase 1, Ludhiana iii. E-203, Focal Point Phase 1, Ludhiana iv. E-40, Focal Point Phase 1, Ludhiana v. E-41, Focal Point Phase 1, Ludhiana vi. 73, 74, 75, 76 HE Pantnagar, Udham, Singh Nagar vii. 39/7, National Highway-8, Begumpur, Khatola, Haryana. iii. That the Corporate Debtor and the Respondent defaulted in making regular payments to the Applicant Bank. The account of the Corporate Debtor was classified as Non-Performing Asset ( NPA ) on 29.12.2020. iv. That a Demand cum Guarantee Invocation Notice dated 06.01.2021 was issued to the Corporate Debtor as well as the Guarantor regarding payment of default amount of ₹ 1,60,63,305.06 as on 04.01.2021 within 7 business days. Further, on 27.05.2021, the Applicant Bank issued a Loan Recall cum Guarantee Invocation Notice regarding payment of ₹ 20,89,97,327.30/- as on 19.05.2021. v. That due to failure in payment, a notice under Section 13(2) of the SARFAESI Act, 2002 was issued on 09.06.2021 by the Applicant Bank for an amount of ₹ 21,09,77,341.01/- together with interest and charges, as on 07.06.2021. On 28.06.2021, the Corporate Debtor issued a reply admitting the default ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r/w Section 101 of the Code. 4. We have heard the Ld. Counsel appearing for the applicant as well as the respondent and perused the averments made in the application and the written submissions filed on behalf of the respondent. The Ld. Counsel appearing for the respondent raised an objection that in terms of Section 240A read with Section 29Ah of the IBC, the Personal Guarantor of an MSME Corporate Debtor has been given a right to become a Resolution Applicant and propose a Resolution Plan for the Insolvency Resolution of the Corporate Debtor. Therefore, the present application is not maintainable. He also placed reliance upon the order of the Hon'ble Delhi High Court and passed in WPC No. 981/2022 and by placing reliance upon the order, ld. Counsel for the applicant submits that the Constitutional validity of Section 95 of the Code is under challenged. Whereas the Ld. Counsel appearing for the applicant submitted that the matter is pending only for the appointment of Resolution Professional Under Section 97 of the IBC and it is only after the submission of report by the Resolution Profession under Section 99 of the IBC, the grounds of admission or rejection of the applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r by furnishing- (a) evidence of electronic transfer of the unpaid amount from the bank account of the debtor; (b) evidence of encashment of a cheque issued by the debtor; or (c) a signed acknowledgment by the creditor accepting receipt of dues. (3) Where the debt for which an application has been filed by a creditor is registered with the information utility, the debtor shall not be entitled to dispute the validity of such debt. (4) For the purposes of examining an application, the resolution professional may seek such further information or explanation in connection with the application as may be required from the debtor or the creditor or any other person who, in the opinion of the resolution professional, may provide such information. (5) The person from whom information or explanation is sought under sub-section (4) shall furnish such information or explanation within seven days of receipt of the request. (6) The resolution professional shall examine the application and ascertain that- (a) the application satisfies the requirements set out in section 94 or 95; (b) the applicant has provided information and given explanation sought b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application can only arise, when the report is submitted by the Resolution Professional under Section 99 of IBC. And after submission of the report, the matter will be taken up under Section 100 of the IBC. 7. Here admittedly the matter is pending for appointment of Resolution Professional under Section 97 of the Code and not on the point of the hearing under Section 100 of the IBC. 8. For the purpose of appointment of Resolution Professional, the Adjudicating Authority is required to examine the details and the documents accompanied with the application, as required under Section 95 of the IBC. In terms of the provisions contained in Section 95(4) of the IBC, we considered the averments made in the application, and we observe that the CIRP against principal borrower has already been initiated vide order dated 12.10.2021 in an application filed by one M/s. Swastik Pipe Limited under Section 9 of the IBC, therefore, default in payment is admitted. We further observed that a demand notice has already been sent and the respondent had appeared, therefore, there was no occasion for issuance of notice. We further notice that the applicant has also proposed the name of Resolution Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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