TaxTMI 
TaxTMI 
2021 (6) TMI 320
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....er viz. M/s. Arohi Infrastructure Private Limited. 2. In so far as the Personal Guarantors to Corporate Debtors is concerned, the Hon'ble Supreme Court of India in the matter of Lalit Kumar Jain vs. Union of India & Ors. in Transferred Case (Civil) No. 245/2020 has upheld the vires of the notification issued by the Central Government vide S.O. 4126(E) dated 15.11.2019, in so far as it relates to coming into force of Insolvency and Bankruptcy Process of Personal Guarantors to Corporate Debtor. Thus, when a Corporate Insolvency Resolution Process in relation to Corporate Debtor is pending before this Adjudicating Authority, then as per Section 60(2) of IBC, 2016 the NCLT would be the competent forum to file an Application for Personal Guarantor in relation to such Corporate Debtor. The Corporate Insolvency Resolution Process in respect of the Corporate Debtor was ordered by this Adjudicating Authority on 20.03.2018. Hence, the present Application in respect of the Insolvency and Bankruptcy proceedings of the Personal Guarantor of Corporate Debtor is filed by the Creditor before this forum. 3. As far as the present Application is concerned, since it pertains to the Insolvenc....
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....e, then Section 97(1) of the IBC, 2016 would get attracted, which is extracted hereunder; 97. Appointment of resolution professional.- (1) If the application under section 94 or 95 is filed through a resolution professional, the Adjudicating Authority 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. (2) The Board shall within seven days of receipt of directions under sub-section (1) 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. (3) Where an application under section 94 or 95 is filed by the debtor or the creditor himself, as the case may be, and not through the resolution professional, the Adjudicating Authority shall direct the Board, within seven days of the filing of such application, to nominate a resolution professional for the insolvency resolution process. (4) The Board sha....
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....resolution professional, may provide such information. (5) The person from whom information or explanation is sought under sub-section (4) shall furnish such information or explanation within seven days of receipt of the request. (6) The resolution professional shall examine the application and ascertain that- (a) the application satisfies the requirements set out in section 94 or 95; (b) the applicant has provided information and given explanation sought by the resolution professional under sub-section (4). (7) After examination of the application under sub-section (6), he may recommend acceptance or rejection of the application in his report. (8) Where the resolution professional finds that the debtor is eligible for a fresh start under Chapter II, the resolution professional shall submit a report recommending that the application by the debtor under section 94 be treated as an application under section 81 by the Adjudicating Authority (9) The resolution professional shall record the reasons for recommending the acceptance or rejection of the application in the report under sub-section (7). (10) The resolutio....
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....2016, the Adjudicating Authority is required to pass an order either admitting or rejecting the Application referred to Section 95 of IBC, 2016. Thereafter, if the Adjudicating Authority is inclined to admit the Application as filed under Section 95 of IBC, 2016 then the moratorium as stated under Section 101 of IBC, 2016 shall commence. 8. Thus, the sequential reading of the above extracted provisions would manifest the fact that immediately upon filing of the Application under Section 94 or 95 of IBC, 2016, this Adjudicating Authority is required to refer the matter to the Board viz. the Insolvency and Bankruptcy Board of India, for approving the name of the Resolution Professional. However, it is to be noted that, this Adjudicating Authority is required to satisfy itself, before referring to the Board the name of the Resolution Professional for its confirmation, as to whether the Application filed under Section 95 of IBC, 2016 satisfies the conditions as laid out in sub - section (4) of Section 95 of IBC, 2016 and they are; (a) the debts owed by the debtor to the creditor or creditors submitting the application for insolvency resolution process as on the date of appl....
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.... is seen that the Creditor has filed the Final Award passed by the Learned Arbitrator on 13.07.2019 and that in the counter filed by the Respondent/Personal Guarantor he has not denied that the said sum is not payable. 12. Thus, in all respects, this Application filed under Section 95 of IBC, 2016 is complete and a perusal of Part - IV of the Application posits the fact that the Application has been moved by an Insolvency Professional, viz. Sripriya Kumar bearing Registration No. IBBI/IPA-001/IP-P00771/2017-2018/11316. Hence as per Section 97(2) of IBC, 2016 we hereby direct the Board viz. The Insolvency and Bankruptcy Board of India, to confirm that there are no disciplinary proceedings pending against Resolution Professional, within a period of 7 days from the date of this order. 13. At this juncture, it is necessary to refer to Rule 8 of the Insolvency and Bankruptcy (Application to Adjudicating Authority for Insolvency Resolution Process for Personal Guarantors to Corporate Debtor), Rules, 2019, wherein it states as follows; 8. Confirmation or nomination of insolvency professional.-- (1) For the purposes of sub-section (2) of section 97 and sub-section (....