TaxTMI 
TaxTMI 
2024 (6) TMI 134
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....ation that the Judicial Member was to preside over three benches, to rationalize the time of the Benches, on 18.05.2024 itself the time of assembling of this Bench was changed to 11:30 am. Mr. Sumesh Dhawan, the Ld. Counsel appearing for the Creditor appeared before this Bench on 20.05.2024 when the matter was taken up and requested for an opportunity to file reply to the application within three days. Nevertheless, once initially the time for assembling of Bench was shown as 2 pm., the Counsel appearing for the Applicant in IA bona-fidely believed so and it is justifiable on his part to say that it was only on account of sudden change in the time of assembling of the Bench that he could not remain present in Court on 20.05.2024, when the matter was called for hearing. In the wake, the prayer made in the application is allowed, and the hearing qua IA-2148/2024 is advanced for adjudication. IA-2148/2024: The prayer made in the captioned application reads thus: "a. Pass an Order under Section 98(2) for the Replacement of the Resolution Professional namely Mr. Raj Kamal Saraogi and appointment of Mr. Arvind Kumar, IBBI/IPA-001/IPP00178/ 2017-18/10357 as the Resolution P....
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....o seek permission of this Tribunal for conducting the negotiation. In sum and substance the plea raised on behalf of the Applicant is that the Resolution Professional seems to have no desire to streamline the process. The averments made by him to this effect in para 16 to 30 of the additional affidavit reads thus: 16. From the aforementioned, in my humble submission and view, it appears that the Resolution Professional has no desire to streamline and ease out the process. In the first place, acting as a professional, the Resolution Professional ought to have shared a list of the information / documents as desired by him to make the process smooth, enable me to effectively collate the necessary information and share the same. Instead the Resolution Professional quoted the various provisions of the Code and the Rules / Regulations vide its e-mail dated 27.04.2024. Thereafter, in spite of my providing the Resolution Professional, a list of the liabilities and the on-going cases, yet, the Resolution Professional instead of citing the additional information required, has merely stated to provide the necessary information as per e-mail dated 27.04.2024. 17.I st....
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....se a lack of transparency in the process. 23. That, I state that the Resolution Professional has exhibited discreetness and vagueness, implying lack of bonafide at his behest. It is prima facie evident from the e-mail exchanges that there is lack of transparency by the Resolution Professional in seeking the relevant information from the Respondent against the alleged claims of the creditors. 24. I state that as per the scheme and intent of the Code, the role of the Resolution Professional in the insolvency proceedings of the Personal Guarantor is that of a negotiator, collaborator, facilitator and an expert in the resolution of issues. 25. The insolvency proceedings is to be aided and facilitated by the Resolution Professional in collaboration and consultation with the Respondent/ Personal Guarantor. However, in the present facts and circumstances the Resolution Professional has failed to attempt any meaningful discourse and collaboration with me. 26. Needless to state, the instant proceedings have grave and rampant ramifications for me. Failure to reach an amicable resolution through an acceptable Resolution Plan shall have the impact of a death....
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....cally admitted that on 24.04.2024, they met the Personal Guarantor in Lodhi Hotel and Mr. Chaurasia effectively participated in the process. From Sections 102 to 112 of IBC, 2016, it nowhere appears that the RP could carry with him any lawyer to meet PG, while seeking to discharge his function in terms of the provisions of Section 105 of IBC, 2016 i.e. the stage when PG has to prepare his repayment plan. 6. We could also peruse the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Personal Guarantor to Corporate Debtor) Regulations 2019. Even these regulations do not indicate anywhere that the RP appointed by this Tribunal in terms of the provisions of Section 97 of IBC, 2016 is entitled to take the assistance of a lawyer while discharging his function as RP at the stage, when the PG was yet to prepare his repayment plan. We are unable to appreciate why and how the RP felt the need to conduct the meeting in an expensive hotel, when the responsibility given to him was to conduct process for Insolvency Resolution of Personal Guarantor. 7. Section 100(2) of IBC, specifically provides that where the Adjudicating Authority admits an application under sub-....
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....ntor. He also made reference to Regulation 3(i) of the aforementioned regulations to espouse that when resolution process costs include the fees payable to the professionals engaged, if any, the RP was justified in taking him to the Lodhi Hotel, while meeting the Personal Guarantor.] 9. Of course when the Ld. RP could deny that he ever made the comment that the matter will go to Bankruptcy, we ignore to adjudicate upon the plea espoused in additional affidavit filed by the PG. 10. Indubitably, the object and intent of chapter 3 of IBC, 2016 is to ensure that the Insolvency of the Personal Guarantor is resolved. The RP is assigned the role in terms of the provisions of Regulations 102 to 112 of the Code, read with Regulations 4,5,6,7,8,9,10,11,12,14 and 15 of the IBBI (IRP for PG to CD) Regulations, 2019. Maybe while discharging function under Section 107 of the Code, read with Regulation 10 of IBBI (Insolvency resolution process for Personal Guarantor to Corporate Debtor), Regulations 2019, the RP may need the services of some cost Accountant/Chartered Accountants etc. But we are unable to appreciate that how before preparation of plan under Section 105 of IBC, 2016, he could....