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TMI Blog2022 (10) TMI 926X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 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. 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. It was held that 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 clearly held that, it is only after the Resolution Professional is appointed by the Adjudicating Authority under Section 97(5), that the step under Section 98 is contemplated - Also there is no violation of principles of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Application, seeking to initiate CIRP against Respondent No. 1. 3. Notice was issued to the Respondents but none appeared on behalf of the Respondents. 4. However, even if the respondents have appeared, no right of audience is available to them 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 of receipt of directions under sub-section (1) of Section 97 of IBC, communicate to the Adjudicating Authority in writing either: (a) Confirming the appointment of the resolution professional; or (b) Rejecting the appointment of the resolution professional and nominating another resolution professional for the insolvency resolution process. Under Sub-Section (3) of Section 97 of IBC Where an application under section 94 or 95 is filed by the debtor or the creditor himself, and not through the resolution professional, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Company Appeal (AT) (Insolvency) No. 317 of 2021 between Mr. Mr. Ajit Bhagwan Kulkarni vs. State Bank of India dated 12.08.2021 was also relied upon by the Respondent's Counsel therein, in support of the contention that no notice is required to be given to the Personal Guarantor at the stage of appointment of Interim Resolution Professional (IRP). Considering that the legislature has provided in Section 99(10) of IBC, that a copy of report of the IRP be furnished to the Debtor as complying with the requirement of the principles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 6. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id 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. Madasa Kumar as Insolvency Resolution Professional (IRP) and sought the Tribunal to appoint him as IRP. Hence Mr. Madasa Kumar, (Registration No. IBBI/IPA-001/IP-P-01590/2019-2020/12465) is appointed as Insolvency Resolution Professional (IRP). ORDER A. Mr. Madasa Kumar, (Registration No. IBBI/IPA-001/IP-P-01590/2019-2020/12465), having office at 11-5-39/4/A, Road No. 8, Venkateshwara Colony, Saroornagar, Hyderabad-500035; e-mail: [email protected]; Mobile: +91 9866512519 is appointed as the Interim Resolution Professional. No disciplinary proceeding is pending against him as per the IBBI website. B. In terms of the Section 99 of the IBC, 2016, the IRP shall submit his report within 10 days on receipt of the date of this order and submit a report to the Tribunal recommending for approval or rejection of the Application. C. The Registry shall communicate the order to the Petitioner/Financial Creditor and the Respondent No. 1/Personal Guarantor forthwi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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