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of <h1>Resolution Professional replaced in personal guarantor case for bringing unauthorized lawyers during repayment plan meetings under Section 105</h1> <h3>Indiabulls Housing Finance Ltd. Versus Dr. Subhash Chandra</h3> NCLT New Delhi replaced the Resolution Professional in a personal guarantor insolvency case. The Tribunal held that under Sections 102-112 of IBC 2016, ... Replacement of the Resolution Professional (RP) - the plea raised on behalf of the Applicant is that the Resolution Professional seems to have no desire to streamline the process - HELD THAT:- From Sections 102 to 112 of IBC, 2016, it nowhere appears that the RP could carry with him any lawyer to meet PG, while seeking to discharge his function in terms of the provisions of Section 105 of IBC, 2016 i.e. the stage when PG has to prepare his repayment plan. Section 100(2) of IBC, specifically provides that where the Adjudicating Authority admits an application under sub-section (1) of Section 100 it may on the request of the RP issue instructions for the purpose of conducting negotiations between the debtor and the creditors and for arriving at a repayment plan. Apparently, no such request was made by the RP. The provisions of Section 105 of IBC, 2016 and Regulations 17 of the aforementioned regulations are very clear that the repayment plan has to be prepared by the Debtor and it is for him to consult the RP. A reading of Section 105(2) of the Code, further makes it clear that it is only in terms of the repayment plan that the Resolution Professional may be required or authorized to carry on the debtor’s business or trade on his behalf or in his name or realise the assets of the debtor or administer or dispose of any funds of the debtor. Thus, when there was no such authorization in favour of RP, it is unable to appreciate and comprehend that how the Ld. Counsel for the RP could rely upon Regulation 18 of the aforementioned regulation. Such arguments could be appreciated only if the Personal Guarantor would have made authorization in favour of the RP, in terms of the provisions of Section 105(2) of IBC, 2016. Mr. Shiv Nandan Sharma, IP is appointed as RP in place of Mr. Raj Kamal Saraogi, IP. It is made clear that nothing observed hereinabove should be held against Mr. Chaurasia or Mr. Raj Kamal Saraogi in any manner - It goes without saying that the newly appointed RP would discharge his function in terms of our order dated 22.04.2024, afresh. Application disposed off. Issues Involved:1. Change in hearing schedule.2. Replacement of the Resolution Professional (RP).Summary:1. Change in Hearing Schedule:The application IA-2148/2024 was initially scheduled for hearing at 2 pm. However, due to the Judicial Member presiding over three benches, the time was changed to 11:30 am on 18.05.2024. The Counsel for the Creditor requested an opportunity to file a reply within three days, citing the sudden change in the schedule as the reason for their absence. The Tribunal allowed the prayer and advanced the hearing for adjudication.2. Replacement of the Resolution Professional (RP):The Personal Guarantor filed an application u/s 98(2) for the replacement of the RP, Mr. Raj Kamal Saraogi, with Mr. Arvind Kumar. The grounds for replacement included:- Lack of confidence in the RP's understanding of the business's complexity.- The RP's conduct during a meeting on 24.04.2024, where he allegedly suggested the proceedings would lead to bankruptcy.- The RP's failure to seek Tribunal permission for negotiations between the debtor and creditors u/s 100(2).- Lack of transparency and collaboration in the insolvency resolution process.The Tribunal noted that the RP met the Personal Guarantor in an expensive hotel with a lawyer, which was unnecessary and not supported by the regulations. The Tribunal emphasized that the RP's role is to act as a consultant, and there was no authorization for the RP to involve a lawyer at this stage.The Tribunal appointed Mr. Shiv Nandan Sharma as the new RP, considering the beneficial nature of the procedure and the need for a facilitator between the Personal Guarantor and creditors. The order clarified that the replacement should not be held against Mr. Chaurasia or Mr. Raj Kamal Saraogi and that Mr. Saraogi is entitled to claim his professional fees and expenses as CIRP cost. The newly appointed RP is to discharge his functions afresh as per the Tribunal's order dated 22.04.2024.
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