TaxTMI 
TaxTMI 
2022 (4) TMI 527
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.... IBC, 2016 and the prayer is also against the Personal Guarantor of the Corporate Debtor. Hence, this Application can be treated as having been filed only against the 1st Respondent and that the 2nd Respondent is only formally added. 2. The facts, briefly are as follows: Respondent No. 1 is a suspended Director of the Corporate Debtor. Respondent No. 2 was sanctioned various credit facilities by the Financial Creditor and Respondent No. 1 stood as Guarantor for the said credit facilities to an extent of Rs. 43 Crores, during the year 2012. The same were renewed, enhanced and revised to Rs. 29.08 Crores from time to time, during the years 2012 to 2019. Respondent No. 2, after fully availing the said credit facilities, failed to adhere ....
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....ll direct the Board within seven days of the date of the application to confirm that there are no disciplinary proceedings pending against Resolution Professional and the Board shall within seven days of receipt of directions under sub-section (1) of Section 97 of IBC, 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. Under Sub-Section (3) of Section 97 of IBC "Where an application under section 94 or 95 is filed by the debtor or the creditor himself and not through the resolution professional, the Ad....
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....tion 100 of IBC. Though time-lines have been prescribed at each stage of the proceeding, leading to acceptance or rejection of the application under section 100, no such time-line has been prescribed for submission of report by the resolution professional though section 100 provides that the adjudicating authority shall take a decision either admitting or rejecting the application within 14 days from the date of submission of the report. That apart on a careful examination of section 100, before the adjudicating authority takes a decision to either admit or reject the application upon receipt of report from the resolution professional, the parties to the insolvency resolution process are required to be heard. It was further held that tho....
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....ice. Since no notice is mandated even under Section 100, Bombay High Court observed that notice before admission under Section 100(1) would serve the principles of natural justice, but it did not say that notice before admission is required. The NCLAT judgment in Mr. Ravi Ajit Kulkarni's case considered the contention raised therein that the debtor did not get opportunity to seek replacement of IRP since he did not have notice of the fact of appointment of IRP. The Supreme Court considered the vires and validity of a notification dated 15.11.2019, in Lalit Kumar Jain Vs. Union of India and others in transferred case (Civil No. 245/2020) dated 21.05.2021. The said judgment was relied upon by the NCLAT and it was observed that the Supreme....
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....hus, what has to be served is the copy of application which has been "submitted". What is contemplated is that the application in Form C should be "submitted" and then the Creditor should serve forthwith a copy of the application to the Guarantor and the Corporate Debtor for whom the Guarantor is a Personal Guarantor. The procedure thus prescribed will give the Personal Guarantor notice of the application already filed before the Adjudicating Authority. Section 95(5) requires the Creditor to provide copy of the application "made under sub-section (1)", to the Debtor. Thus, serving advance copy is not contemplated. 5. The argument that Section 98 provides for replacement of the Resolution Professional and hence the Guarantor should have a....
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....sional to seek further information or explanation in connection with the application as may be required from the Debtor or the Creditor or any other person, who, in the opinion of the Resolution Professional, may provide such information. Hence it is not as if, the Debtor is not provided an audience before the submission of the report. Hence I do not see any violation of principles of natural justice by not giving an opportunity to the Debtor for making his submissions before the appointment of IRP. As observed by the Supreme Court in the judgment of Lal it Kumar Jain case, it is in its wisdom that the legislature has enacted various provisions which are unambiguous and do not leave any scope for interpretation, with regard to the issuance ....