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TMI Blog2022 (4) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... lthough, an emphatic argument is projected on the side of the Appellant/Applicant that the Appellant/Applicant is empowered to prefer an Application under Section 27 Read with Section 60 (5) of the I B Code, 2016 this Tribunal is of the considered view that the Appellant/Applicant is not showered with any Locus to prefer an Application praying for Displacement/Replacement of the Resolution Professional. In fact, Section 27 speaks of Replacement of Resolution Professional by the Committee of Creditors - Section 60(5) deals with Question of Priority or Question of fact relating to the I B Code. When there is an express Provision namely Section 27 of the Code, which unerringly deals with Replacement of Resolution Professional by the Committee of Creditors, then, the same is to be followed/adhered to by the Litigant/Stakeholders and others connected with the I B Code. Even the saddling of penalty by the Disciplinary Committee is permissible as per Section 220(3) of the I B Code, 2016 and only when the said Committee is subjectively satisfied there exists a sufficient cause in imposing a penalty upon the deviant. Looking at from any angle, the Appeal sans merits - Appeal dismissed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting authority. If the disciplinary committee is satisfied that sufficient cause exists, it can impose a penalty. and resultantly dismissed the Application filed by the Applicant / Appellant for changing the Resolution Professional as not maintainable and devoid of merits . 3. Assailing the legality, validity and propriety the impugned Order dated 01.02.2022 in IA/971/IB/2020 in IBA/1099/2019 passed by the Adjudicating Authority [National Company Law Tribunal, Division Bench-II, Chennai], the Practising Company Secretary Mr.Gaurav Kumar, for the Appellant / Applicant submits that the Impugned Order is palpably wrong and an incorrect one in the eye of Law because of the simple fact that the Adjudicating Authority had committed an error in not appreciating the well laid down principles under the I B Code, 2016. 4. Advancing his argument, the Practising Company Secretary, Mr.Gaurav Kumar points out that the Appellant / Applicant is an Operational Creditor of 1st Respondent/M/s. Regen Powertech Private Limited which was admitted into Insolvency as per Order dated 13.12.2019 in IBA/1099/2019. 5. It is the stand of the Appellant that the 2nd Respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t from the order dated 28.01.2019 passed by this Authority that the order was comprehensive, unambiguous and clear in directing the respondents to conduct the CoC meeting and re-consider the proposal that has been given by the Applicant by providing him the opportunity of being heard. Despite this, the Resolution Professional/1st Respondent viz., Mr.Ebenezar Inbaraj did not conduct the meeting as directed and wilfully and knowingly disobeyed the orders of this Authority thereby has conducted himself in the most reprehensible and unbecoming manner showing scant regard to the order of this Adjudicating Authority which conduct on the part of Mr.Ebenezar Inbraj is palpably, manifestly and gravely contumacious and makes him liable to be dealt with in accordance with the law. 10. It is the case of the Appellant that the Resolution Professional fails the first test mentioned in Clause 4 sub clause (g) of the IBBI (Insolvency Professionals) Regulations, 2016 for the purpose of continuing as a Resolution Professional and that the parameters of integrity , absence of convictions and competence clearly shows the incapability of the Resolution Professional to be eligible, to be t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e relief sought for. 16. The Regulation 2(j) of the above Regulation defines the Stakeholder as Debtor , Creditor , Claimant , Service Provider , Resolution Applicant , any person having interest in Insolvency , Liquidation , Voluntary Liquidation or Bankruptcy Transaction under the Code. JURISDICTION OF ADJUDICATING AUTHORITY: 17. Section 60(5) of the I B Code, 2016 showers jurisdiction upon the Adjudicating Authority to decide the questions of priority , issue of law or facts emanating out of or in relation to the Insolvency Regulation . 18. Section 60(5) of the I B Code, 2016 is not of pervasive Section conferring jurisdiction upon the Adjudicating Authority to determine any question relating to the Corporate Debtor in relation to the Insolvency Regulation . 19. The Adjudicating Authority is to adhere to the procedural aspects, while determining the question of priorities, question of law and facts, arising out of an order, of course, depending on the issue involved. 20. In fact, the Appellant / Applicant in IA/971/IB/2021 in IBA/1099/2019 had prayed for the removal and replacement of the 2nd Respondent as Resolution Professio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the same reads as under:- 27. Replacement of resolution professional by committee of creditors. (1) Where, at any time during the corporate insolvency resolution process, the committee of creditors is of the opinion that a resolution professional appointed under section 22 is required to be replaced, it may replace him with another resolution professional in the manner provided under this Section. Substituted by Act 26 of 2018, S. 20, for sub-S. (2) (w.r.e.f. 6-6-2018). (2) The Committee of Creditors may, at a meeting, by a vote of sixty-six per cent of voting shares, resolve to replace the resolution professional appointed under section 22 with another resolution professional, subject to a written consent from the proposed resolution professional in the specified form.] (3) The committee of creditors shall forward the name of the insolvency professional proposed by them to the Adjudicating Authority. (4) The Adjudicating Authority shall forward the name of the proposed resolution professional to the Board for its confirmation and a resolution professional shall be appointed in the same manner as laid down in section 16. (5) Where any disciplina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... force; (ii) there has been material irregularity in exercise of the powers in the resolution professional during the corporate insolvency resolution period; (iii) the debts owed to operational creditors of the corporate debtor have not been provided for in the resolution plan in the manner specified by the Board; (iv) the insolvency resolution process costs have not been provided for repayment in priority to all other debts; or (v) the resolution plan does not comply with any other criteria specified by the Board. (4) An appeal against a liquidation order passed under Section 33 may be filed on grounds of material irregularity or fraud committed in relation to such a liquidation order. 24. Although, an emphatic argument is projected on the side of the Appellant / Applicant that the Appellant / Applicant is empowered to prefer an Application under Section 27 Read with Section 60 (5) of the I B Code, 2016 this Tribunal is of the considered view that the Appellant / Applicant is not showered with any Locus to prefer an Application praying for Displacement / Replacement of the Resolution Professional . In fact, Section 27 speaks of Repla ..... X X X X Extracts X X X X X X X X Extracts X X X X
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