TaxTMI 
TaxTMI 
2021 (10) TMI 241
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....counsel for the respondent. 2. Challenge made in both the writ petitions are to identical orders. In Writ Petition (L) No.21271 of 2021, the impugned order dated 6th September, 2021 was passed by the Debts Recovery Tribunal-1, Mumbai (Tribunal) in Application IBC No.2 of 2021 whereas in Writ Petition (L) No.21272 of 2021 identical impugned order dated 6th September, 2021 was passed by the Tribunal in Application IBC No.3 of 2021. Both the applications before the Tribunal were moved by Omkara Assets Reconstruction Private Limited which is the respondent in the present writ proceedings with petitioner as the respondent therein. 3. Since both the impugned orders are identical, the one in Writ Petition (L) No.21271 of 2021 is extracted hereunder:- "1. Ld. Counsel for the applicant presses this petition and submits that the respondent herein are the personal guarantors. Therefore, a Resolution Professional may be appointed and contends that the applicant has already proposed Snehal A. Kamdar to be appointed as a Resolution Professional. 2. Ld. Counsel for the respondent objected to the appointment of the RP in the present Insolvency Application and contend....
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....sional in the present matter and he is directed to submit report in terms of IBC." 4. From a perusal of the aforesaid order we find that the impugned order was passed under section 97 of the Insolvency and Bankruptcy Code, 2016 (IBC). Application was filed by the respondent before the Tribunal to initiate insolvency resolution process against the petitioner and for appointment of resolution professional. The application was opposed by the petitioner on the ground that petitioner had already assigned the entire loan to J.M.Finance. Therefore, the application under section 95 of IBC was not maintainable. Petitioner contended that resolution professional has no power to decide the issue and therefore, before proceeding further Tribunal should decide on maintainability of the application to initiate insolvency resolution process. Notwithstanding such objection raised by the petitioner, Tribunal took the view that provisions of the IBC, more particularly from sections 95 to 100, do not contemplate entertaining any objection at that stage till the receipt of report from the resolution professional. Therefore, objection raised by the petitioner was rejected whereafter resolution profes....
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....port by the resolution professional under section 100 of IBC. Therefore, there is no error or infirmity in the impugned order. To support his submission Dr.Saraf has relied on a recent decision of the National Company Law Appellate Tribunal, Principal Bench, New Delhi in Ravi Ajit Kulkarni Vs. State Bank of India, decided on 12th August, 2021. 8. Submissions made by learned counsel for the parties have received the due consideration of the court. 9. We have already extracted the impugned order whereby objection raised by the petitioner to decide the jurisdictional issue at the threshhold was declined by the Tribunal holding that at the present stage the same is unwarranted. 10. Section 95 of IBC deals with application by creditor to initiate insolvency resolution process. As per sub-section (1), a creditor may apply either by himself or jointly with other creditors or through a resolution professional to the adjudicating authority for initiating an insolvency resolution process under section 95 by submitting an application. As per sub-section (4) the application under sub-section (1) should be accompanied by the details and documents mentioned therein. Sub-section (....
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....e of examining the application from the debtor or the creditor or any other person. Sub-section (5) says that the person from whom information or explanation is sought under subsection (4) shall furnish such information or explanation within 7 days of the receipt of the request. A conjoint reading of sub sections (6) and (7) of section 99 would indicate that the resolution professional shall examine the application and ascertain whether the application satisfies the requirement set out in sections 94 and 95 and whether the applicant has provided information and given explanation sought for by the resolution professional under sub-section (4). After examination of the application resolution professional may recommend acceptance or rejection of the application in his report. As per sub-section (9) the resolution professional is required to record reasons in both eventualities either recommending acceptance or rejection of the application. In terms of sub-section (10) the resolution professional shall give a copy of the report so prepared to the debtor or to the creditor, as the case may be. 15. That brings us to section 100 of IBC which deals with admission or rejection of the app....