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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 ..... he 'Impugned Order' dated 01.02.2022 in IA/971/IB/2021 in IBA/1099/2019 at paragraph Nos.6 to 7 had observed the following: 6. "We have heard the submissions made by the Learned Counsel for the parties. At the first instance, the Applicant herein is not entitled to file an Application seeking replacement of RP since such a provision for replacement of RP has been envisaged only under Section 22 and 27 of IBC, 2016. Secondly, the MA/96/2019 which is relied on by the Applicant in the present case came to be dismissed by this Tribunal vide an order dated 11.01.2022 and also the order dated 20.02.2019 passed by this Tribunal was also stayed by the Hon'ble High Court of Madras. Further, it has been time and again held by the Hon'ble Appellate Tribunal that this Adjudicating Authority cannot enforce disciplinary proceedings against the IRP/RP and only IBBI would be the competent authority to initiate disciplinary proceedings against the IRP/RP. 7. Further, Section 217 of the IBC empowers a person aggrieved by the functioning of an RP to file a complaint to the IBBI. If the IBBI believes on the receipt of the complaint that any RP has contravened the provisions of IBC, or the rules, r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the outstanding dues, in respect of the goods supplied to the 1st Respondent for a sum of Rs. 2,83,67,286/- only and that the 'Resolution Professional'/'2nd Respondent' had admitted the claim of the 'Appellant' amounting to Rs. 2,83,67,289/-. Further, prior to the admission under 'CIRP', the 1st Respondent had filed a Petition before the Hon'ble Madras High Court for the purpose of reinstatement of 'Arbitration' proceedings in 'Application No.578/2019, Application No.579/2019 in OA No.72/2019 and OA No.73/2019, which took place, after the outstanding claim of the Applicant/Appellant was admitted by the 'Resolution Professional'/'2nd Respondent'. 8. It is the stand of the 'Appellant'/'Applicant' that the Resolution Professional/2nd Respondent is undergoing 'Contempt Proceedings' for a deliberate and wilful disobedience of the order passed by the Hon'ble Bench and the same is pending as on date, relating to the Contempt of Court Act, 1971 in MA/39/2019, the Contempt Proceedings was filed through MA/96/2019. 9. It is represented on behalf of the 'Appellant'/'Applicant' that the copy of the Order dated 06.02.2019 passed in 'Contempt Proceedings' in MA/96/2019 shows that the 'Adjudi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ditors' with a 60% majority of voting shares subject to the written 'consent' purported 'Resolution Professional'. A 'Corporate Debtor' may have initiated CIRP and may have appointed the 'Resolution Professional' of their choice. The fact of the matter is that the 'Committee of Creditors' do have the right to replace such 'Resolution Professional when they suspected collusion between the 'Resolution Professional' and the 'Management'. 14. If the 'Resolution Professional' is required to be replaced by the 'Committee of Creditors' the 'Adjudicating Authority' is bound to consider the name proposed by the 'Committee of Creditors'. However, if any name is proposed by the 'Committee of Creditors', the 'Adjudicating Authority' may call for a name from the IBBI until a replacement of 'Resolution Professional' is appointed. The 'Adjudicating Authority' may ask the name of Resolution Professional/IRP to function for the purpose of ensuring the smooth functioning of 'Resolution Process'. IBBI [GRIEVANCES AND COMPLAINT HANDLING PROCEDURE REGULATION, 2017] 15. It is to be remembered that a 'stakeholder' in the 'Insolvency' may file a complaint against the 'Resolution Professional' or a 'Liq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pportunity 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 orders of this Adjudicating Authority which conduct on the part of Mr. Ebenezar Inbaraj is palpably, manifestly and gravely contumacious and makes him liable to be dealt with in accordance with the law. 5. In view of the above, I hereby in exercise of the powers conferred under Section 425 of the Companies Act, 2013 read with Section 12 of the Contempt of the Courts Act, 1971, issue notice to the Resolution Professional/1st Respondent viz. Mr. Ebenezar Inbaraj to show cause as to why he should not be prosecuted for committing contempt of this Tribunal under the contempt of the Courts Act, 1971 and direct him to file the explanation in the shape of an Affidavit within two weeks." and is directed to 'List' the matter on 22.02.2019 at 10.30.A.M. 22. It is not out of place for this 'Tribunal' to make a pertinent mention that Section 27 of the I&B Code, 2016 under th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son under this Code. (6) Notwithstanding anything contained in the Limitation Act, 1963 (36 of 1963) or in any other law for the time being in force, in computing the period of limitation specified for any suit or application by or against a corporate debtor for which an order of moratorium has been made under this Part, the period during which such moratorium is in place shall be excluded. 61. Appeals and Appellate Authority. - (1) Notwithstanding, anything to the contrary contained under the Companies Act, 2013 (18 of 2013), any person aggrieved by the order of the Adjudicating Authority under this part may prefer an appeal to the National Company Law Appellate Tribunal/. (2) Every appeal under sub-section (1) shall be filed within thirty days before the National Company Law Appellate Tribunal; Provided that the National Company Law Appellate Tribunal may allow an appeal to be filed after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing the appeal but such period shall not exceed fifteen days. (3) An appeal against an order approving a resolution plan under section 31 may be filed on the following grounds, na ..... X X X X Extracts X X X X X X X X Extracts X X X X
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