TaxTMI 
TaxTMI 
2022 (11) TMI 929
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.... follows: The Petitioner/Financial Creditor sanctioned Term Loan of Rs. 35 Crores to the Corporate Debtor vide sanction letter dated 23.04.2013. The Corporate Debtor executed Term Loan Agreement dated 06.05.2013 and letter of Hypothecation dated 06.05.2013, besides creation of equitable mortgage of the property of the Corporate Debtor and other Guarantors. The Respondent stood as a guarantor for the Term Loan availed by the Corporate Debtor. The Corporate Debtor failed to repay the Term Loan and the loan account has been declared as NPA on 29.07.2015. The Corporate Debtor acknowledged the loan amount payable to the Petitioner/Financial Creditor vide letter dated 21.02.2017. The Petitioner issued demand notice dated 01.01.2018 under SARFAE....
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....f 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 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." Under Sub-Section (4) of Section 97 of IBC "The Board shall nominate a resolution professional within ten days and then the Adjudicating Authority under Sub-Section (5) shall by order appoint the Resolu....
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....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. 5. It was further held that though the legislature itself has provided in Section 99(10) that a copy of the report of the Resolution Professional should be furnished to the debtor or creditor, thus complying with the requirement of the principles of natural justice, it would be in the fitness of things and in furtherance of principles of natural justice that the parties are also heard before the decision is taken by ....
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....unity 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 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 Credit....
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....notice of the application already filed before the Adjudicating Authority. Section 95(5) requires the Creditor to provide a copy of the application "made under sub-section (1)", to the Debtor. Thus, serving advance copy is not contemplated. 6. The arguments that Section 98 provides for replacement of the Resolution Professional and hence the Guarantor should have an opportunity to seek replacement of Resolution Professional and hence he should be heard before appointment of IRP was also considered and held that going through Section 98 of IBC, 2016, it is found that Section 98 is not stage specific. Section 98 itself shows that the section could be resorted to even at stages like implementation of repayment plan which would be a stage beyo....
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....s 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 for interpretation, with regard to the issuance of notice and giving the right of audience to the Debtor at the stage of appointment of IRP. It can be noted that the judgment of Bombay High Court in Surendra B. Jiwrajka vs. Omkara Assets Reconstruction case was carried to the Supreme Court and is pending. The Supreme Court has ordered for the Resolution Professional not to submit the report till the finality of the judgment. How....