9911796707
TMI Blog2022 (11) TMI 647X X X X Extracts X X X X X X X X Extracts X X X X ..... n, and not in any other manner. The ingredients of Section 22 (3) of the Insolvency Bankruptcy Code, 2016 very clearly confers power on the Committee of Creditors to replace the Interim Resolution Professional, by preferring an Application before the Adjudicating Authority, for the Appointment of the Proposed Resolution Professional (along with the Written Consent from the Proposed Resolution Professional in the Specified Form) - When the ingredients of Section 22 (3) (b) of the Code explicitly spells out for the Appointment of the proposed Resolution Professional, then, this Tribunal is of the considered opinion that the invocation of Rule 11 of the National Company Law Appellate Tribunal Rules, 2016 cannot be pressed into service, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the CoC. Hence, the IRP prays to dismiss the instant I.A. 4. Therefore, we are of the view that the instant I.A. is not maintainable as for the replacement of IRP, it must be filed by CoC/RP. and found No Merits in the Application and dismissed the same, as not maintainable. 2. The Learned Counsel for the Appellant submits that the Appellant , being a Suspended Director / Shareholder of the Corporate Debtor is entitled to maintain the instant Company Appeal (AT)(CH)(Ins) No.392/2022 before this Tribunal against the Impugned Order dated 20.07.2022 in IA No.259/2022 in CP(IB) No.12/BB/2021, passed by the Adjudicating Authority (National Company Law Tribunal, Bengaluru Bench, Bengaluru). 3. It is represe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owards their benefits, which vividly evident, as the Interim Resolution Professional had allocated shares, in Committee of Creditors, to the Entities / Persons, related to the Corporate Debtor . 6. The other stand taken on behalf of the Appellant , is that the Impugned Order is to be set aside, because of the existence of nexus between R. Kothari and Company LLP, KMSR Kothari Consultancy Pvt. Ltd. the Corporate Debtor and the Interim Resolution Professional , Mr. Ahsan Ahmad and, therefore, the Interim Resolution Professional cannot be presumed to act, independently . 7. The Learned Counsel for the Appellant to lend his support to his contention that IA No.259/2022 in CP(IB) No.12/BB/2021 is maintainable befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the Adjudicating Authority acting independent of the opinion of the Committee of Creditors in this regard. This case is squarely covered by the judgment rendered by this Appellate Tribunal in State Bank of India vs. M/s. Metenere Ltd. Company Appeal (AT) (Insolvency) No. 76 of 2020 decided on 22nd May, 2020. Paragraphs 7 and 8 which are relevant and germane to the disposal of instant appeal are reproduced herein below: 7. This Appellate Tribunal had an occasion to consider ineligibility or disqualification for appointment as Interim Resolution Professional or Resolution Professional . Taking note of the relevant provisions of law in State Bank of India v. Ram Dev International Ltd. (Through Resolution Professional) Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... solution Professional in place of Mr. Shailesh Verma. This has to be viewed in the context of apprehension of bias raised by the Respondent- Corporate Debtor for the apprehension of bias necessarily rests on the perception of Respondent- Corporate Debtor . It is profitable to refer to the following observations of the Hon ble Apex Court in Ranjit Thakur v. Union of India and Ors. (1987) 4 SCC 611 : 17. As to the tests of the likelihood of bias what is relevant is the reasonableness of the apprehension in that regard in the mind of the party. The proper approach for the judge is not to look at his own mind and ask himself, however, honestly, Am I Biased? ; but to look at the mind of the party before him 8. The fact that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned Counsel for the Appellant , as to how the Appellant / Suspended Board of Directors can prefer the instant Comp. App. (AT)(CH)(Ins) No.392/2022, before this Tribunal under Section 22 (3) of the Insolvency Bankruptcy Code, 2016 which enjoins Committee of Creditors to replace the Interim Resolution Professional , who shall file an Application before the Adjudicating Authority for the appointment of the Proposed Resolution Professional (along with the consent from the Proposed Resolution Professional ) in the specified form, in terms of Section 22 (3) of the Insolvency Bankruptcy Code, 2016, the Learned Counsel for the Appellant answered the same, by pointing out that except seeking the aid of Rule 11 of the Natio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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