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TMI Blog2022 (6) TMI 211X X X X Extracts X X X X X X X X Extracts X X X X ..... reditor to provide a copy of the application made under sub-section (1) , to the Debtor. Thus, serving advance copy is not contemplated. The arguments that Section 98 provides for replacement of the Resolution Professional and hence the Guarantor should have an opportunity to seek replacement of Resolution Professional and hence he should be heard before appointment of IRP was also considered and held that going through Section 98 of IBC, 2016, it is found that Section 98 is not stage specific. Section 98 itself shows that the section could be resorted to even at stages like implementation of repayment plan which would be a stage beyond Section 116, where implementation and supervision of repayment plan is provided for. Any amount of audience is provided to the debtor before the Resolution Professional submits a report. Section 99 (2) of IBC gives an opportunity to the debtor to prove repayment of debt claimed as unpaid by the creditor. Section 99 (4) of IBC, empowers the Resolution Professional to seek 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 Resol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er dated 01.04.2019 with the last date of payment as 29.06.2019. However, it did not materialise and failed. Thus, the default occurred on 29.06.2019. The Applicant filed a Petition under Section 7 of IBC before this Tribunal and the same was admitted vide order dated 03.11.2021. The Applicant sent a demand notice i.e., Form-B on 04.09.2021 to the Respondent. As per the Deeds executed by the Respondent, the Respondent is liable for an amount of Rs. 147,58,68,782/- as on 31.08.2021 with further interest. The Applicant did not receive any response from the Respondent. Hence, this Application, seeking to initiate CIRP against Respondent. 3. Notice was issued to the Respondent and proof of service is filed. None appeared for the Respondent. 4. No right of audience is provided under the relevant provisions of Section 95 or 97. After the application under Section 95 is filed, under Section 97 the Adjudicating Authority, if the application is filed through a Resolution Professional, shall direct the Board within seven days of the date of the application to confirm that there are no disciplinary proceedings pending against Resolution Professional and the Board shall within seven days ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the application within 14 days from the date of submission of the report. That apart, on a careful examination of section 100, before the adjudicating authority takes a decision to either admit or reject the application upon receipt of report from the resolution professional, the parties to the insolvency resolution process are required to be heard. It was further held that though the legislature itself has provided in Section 99 (10) that a copy of the report of the Resolution Professional should be furnished to the debtor or creditor, thus complying with the requirement of the principles of natural justice, it would be in the fitness of things and in furtherance of principles of natural justice that the parties are also heard before the decision is taken by the Adjudicating Authority one way or the other under Sub-section (1) of Section 100 of IBC, 2016. It can be noted that the Bombay High Court did not interfere with the order of the Adjudicating Authority therein, appointing the Interim Resolution Professional, which was without notice. The NCLAT common judgment in Company Appeal (AT) (Insolvency) No. 316 of 2021 between Mr. Ravi Ajit Kulkarni vs. State Bank of India and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordinarily resides or carries on business or personally works for gain. It held that, it is evident from a reading of the Section along with the Rule, that what the Creditor has to serve is the copy of the application made under sub-section (1) to the Debtor. Reading Rule 7(2) with Rule 3 shows that the application filed under sub-section (1) of Section 95 shall be submitted in Form -C and the Creditor will serve forthwith a copy of the application to the Guarantor and the Corporate Debtor for whom the Guarantor is a Personal Guarantor. Thus, what has to be served is the copy of application which has been submitted . What is contemplated is that the application in Form C should be submitted and then the Creditor should serve forthwith a copy of the application to the Guarantor and the Corporate Debtor for whom the Guarantor is a Personal Guarantor. The procedure thus prescribed will give the Personal Guarantor, notice of the application already filed before the Adjudicating Authority. Section 95(5) requires the Creditor to provide a copy of the application made under sub-section (1) , to the Debtor. Thus, serving advance copy is not contemplated. 5. The arguments t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to the Debtor at the stage of appointment of IRP. It can be noted that the judgment of Bombay High Court in Surendra B. Jiwrajka vs Omkara Assets Reconstruction case was carried to the Supreme Court and is pending. The Supreme Court has ordered for the Resolution Professional not to submit the report till the finality of the judgment. However, as things stand as on today and going by the law which is settled as on today, I conclude that no notice is required for the Respondent at the stage of appointment of IRP. 6. Considering the said facts, this Tribunal is of the considered opinion that there is no hurdle to entertain this application under Section 95 of IBC, 2016, since the application is found to be complete. The Petitioner suggested Mr. Maligi Madhusudhana Reddy as Insolvency Resolution Professional (IRP) and sought the Tribunal to appoint him as IRP. Hence Mr. Maligi Madhusudhana Reddy, (Registration No. IBBI/IPA-001/IP-P00843/2017-2018/11427) is appointed as Insolvency Resolution Professional (IRP). ORDER A. Mr. Maligi Madhusudhana Reddy, (Registration No. IBBI/IPA-001/IP-P00843/2017-2018/11427), having office at MMREDDY AND CO., 4th Floor HSR Eden, Road No. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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