2022 (7) TMI 200

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....imits Amount Sanctioned Amount Disbursed CC (Hyp) 38.00 38.00 SLC 5.00 5.00 Total FBWC Limits 43.00 43.00 Term Loans 9.00 9.00 Total TL Limits 9.00 9.00 Total Limits 52.00 52.00 Respondent No. 1 stood as a Personal Guarantor to the credit facilities availed by the Corporate Debtor/Respondent No. 2. Respondent No. 1 executed Guarantee Deeds dated 08.06.2010, 10.03.2011, 14.12.2011, 18.12.2012 & 09.06.2014 in favour of the Petitioner/Financial Creditor. The outstanding debt and default as on 31.03.2021 is Rs. 63,20,75,944.67 (including un-applied interest of Rs. 18,24,64,824.13). The Corporate Debtor/Respondent No. 2, after availing the aforesaid credit facilities, violated the terms and committed default in repaying the outstanding amounts. The account of the Corporate Debtor/Respondent No. 2 is declared as NPA on 30.04.2019. The Petitioner issue notice dated 30.03.2019 under Section 13(2) of SARFAESI Act to the Respondents for repayment of the outstanding amounts. The said notice has been served on the 1st Respondent. Inspite of receipt of notice the Respondents did not come forward to pay the outstanding amounts. The Petitioner also filed a Company Petition un....

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.... pass an order either admitting or rejecting the Application. It is only under Section 100(3) that the Adjudicating Authority shall provide a copy of the order passed under Sub-section (1) to the Creditors. Hence, in terms of Section 97 & 100 of IBC, 2016 no right of audience can be given to the Respondents at a stage before appointing the IRP. In support of the said reasoning, a judgment of the Bombay High Court in Writ Petition (L.) No. 21271 & 21272 of 2021 between Surendra B. Jiwrajka vs Omkara Assets Reconstruction can be looked into. It was held by the Bombay High Court that from an analysis of the provisions contained in sections 95 to 100 of IBC, it can be seen that a definite time-line has been provided at each stage of the proceeding. That apart, the interim moratorium in terms of Section 96, which commences from the date of the Application, remains in force till the date of admission of such application under section 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....

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.... 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 Court discussed in Para 81 of the judgment in Lalit Kumar Jain, that it was evident that the method adopted by the Central Government to bring into force different provisions of IBC had a specific design which was to fulfill the objectives underlying the code, having regard to its priorities. The NCLAT has considered Section 95 (5) of IBC, 2016 which requires the Creditor to provide copy of the application under sub-section (1) to the debtor and felt that it has to be read with Rule 3 (1) (g) which is as under: "Rule 3(1)(s) "serve" means sending any communication by any means, including registered post, speed post, courier or electronic means, which is capable of producing or generating an acknowledgement of receipt of such communication: Provided that where a document cannot be served in any of the modes, it shall be affixed at ....

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....he principles of natural justice, which were considered by the Bombay High Court in the above cited judgment, are not violated by not providing for a notice before appointment of IRP, as can be seen from Section 99 of IBC. Any amount of audience is provided to the debtor before the Resolution Professional submits a report. Section 99 (2) of IBC gives an opportunity to the debtor to prove repayment of debt claimed as unpaid by the creditor. Section 99 (4) of IBC, empowers the Resolution Professional 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 Lalit Kumar Jain case, it is in its wisdom that the legislature has enacted various provisions which are unambiguous and do not leave any scope fo....