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TMI Blog2024 (11) TMI 481X X X X Extracts X X X X X X X X Extracts X X X X ..... or creditor seeking replacement of the RP. The submission of the learned Counsel for the Appellant that Section 94 gives a vested right to the debtor to initiate insolvency resolution process either personally or through RP, hence, the said vested right cannot be taken away. Section 94, sub-section (1) is a provision, which permits a debtor to initiate insolvency resolution process. Thus, the debtor is fully entitled to initiate the insolvency resolution process, either personally or through RP. The Appellant, thus, was fully entitled to initiate the insolvency resolution process through RP, as was done in the present case. But, the stage under Section 98 sub-section (1) is subsequent to appointment of RP under Section 97 - Hence, Prabhat Ranjan Singh, was appointed by the Adjudicating Authority by order dated 06.12.2023 as per Section 97 of the IBC. The Adjudicating Authority did not commit any error in allowing the application filed by the Financial Creditor for replacement of the RP - there are no error in the order impugned - Appeal is dismissed. - [Justice Ashok Bhushan] Chairperson, [Barun Mitra] Member (Technical) And [Arun Baroka] Member (Technical) For the Appellant : M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the execution petition bearing Ex. P. 32/2014 titled as Technology Development Board Vs. Mis Usha India Ltd. Anr. before the Hon'ble High Court of Delhi. The Copy of the Order passed by the Hon'ble High Court of Delhi wherein Mr. Prabhat Ranjan Singh appeared as a counsel of Usha India Ltd in which the Petitioner is the director is attached herewith as ANNEXURE- R/3. 7. It is further respectfully submitted that Mr. Prabhat Ranjan Singh as Counsel of Usha India Ltd. also wrote a letter dated 20.12.2017 to the Retd. Justice Y.K. Singhal, Sole Arbitrator, New Delhi wherein Mr. Prabhat Ranjan Singh informed the Ld. Arbitrator that the Technology Development Board (Financial Creditor) had waived its right to file present arbitration proceedings as the creditor had already filed the suit before the Hon'ble Delhi High Court for the adjudication of its dispute and the present arbitration proceedings is also barred by the principle of res-judicata. The copy of the letter dated 20.12.2017 is attached herewith as ANNEXURER/4. 8. It is respectfully is submitted that the Ld. Arbitrator also during the arbitration proceedings observed the fact that the Respondents i.e. the Usha India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e provisions of the Code and on whom the Adjudicating Authority can rely upon. Thus, the Independence of RP with reference to the Personal Guarantor and the Company thereon needs to be maintained. However, in the present case, the Personal Guarantor filed the Present Application under Section 94 of the Code through the Resolution Professional namely Mr. Prabhat Ranjan Singh. Further, the RP was confirmed by this Adjudicating Authority vide order dated 06.12.2023 and directed him to file a report under Section 99 of the Code. vi. We have perused the order dated 25.01.2017 passed by the Hon'ble High Court of Delhi very carefully and found that Mr. Prabhat Ranjan Singh has appeared on behalf of the Judgment Debtor (JD) No. 1 2 as reflected in the appearance column of the order dated 25.01.2017. Thus, if the Resolution Professional was having some professional engagement earlier, the same can be the reason of the RP being biased and having influence of the Personal Guarantor in the Personal Insolvency Resolution Process. Hence, in our considered view it can be a valid and reasonable ground to change or to replace the RP in the present matter. 6. The order impugned has been passed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Financial Creditor under Section 98 for replacement of the RP. Section 98, sub-section (1) entitles both the debtor or the creditor to apply to the Adjudicating Authority for the replacement of such RP, where the debtor or creditor is of the opinion that RP appointed under Section 97 is required to be replaced. Section 98, sub-section (1) does not contain or enumerate grounds, on which replacement can be asked for. The statutory provision only requires Where the debtor or the creditor is of the opinion . Although, the opinion to be formed under Section 98, sub-section (1) is subjective opinion of the debtor or the creditor, which may entitle them to make an application for replacement of RP, it goes without saying that opinion should be founded on rational basis and objective consideration. 8. In the present case, from the facts which have been brought on the record, it is clear that the RP prior to filing of Section 94 application, has been representing the Corporate Debtor and the Personal Guarantor, before the Delhi High Court as a Counsel for the Corporate Debtor and the Personal Guarantor. Formation of opinion by the Financial Creditor on the ground that RP, who has repr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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