TaxTMI 
TaxTMI 
2025 (6) TMI 1513
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....at has been submitted in the proceedings under Section 95 of the I & B Code, 2016, at the stage when the proceedings have reached to Section 99 of the I & B Code. 2. In order to deal with the respective arguments of the learned counsel for the parties, reference to Section 99(4)(5) of the I & B Code, 2016, becomes mandatory. The same is extracted hereunder: - (1) ...... (2) ...... (3) ...... (4) For the purposes of examining an application, the resolution professional may seek such 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. (5) The person from whom information or explanation is sought under sub-section (4) shall furnish such information or explanation within seven days of receipt of the request." 3. The issue would be, and as derived by the Ld. Tribunal while passing the impugned order, is in the light of the judgment of Surendra B. Jiwrajka vs Omkara Assets Reconstruction Private Limited, wherein it was observed thereof that till the proceedings which are being instituted under Section 95 rea....
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....is decision-making wisdom, depending on the requirements for preparing the report, whether to call for an explanation or information or not. In other words, it could be said and as argued by the Respondents Counsel also that, the provisions under Section 99 (4) of the I & B Code, 2016, since it uses the word 'may', and as the exercise of powers of calling for the information or explanation has been made discretionary at the wisdom of the Resolution Professional, it is argued that the provisions under Section 99 (4) of the I & B Code, 2016, is not mandatory. 7. This may apparently seem to be quite acceptable, but practically it may not be always the case, particularly in the given set of circumstances of the instant case, the reason being that in the instant case, the Resolution Professional himself had exercised his discretion and had issued a notice on 21.06.2024 seeking information from the Appellant. However, in the said notice, the number of days, which was granted to submit the information was confined to two days. It is here where the controversy emerges regarding limiting the number of days within which the information was to be filed. 8. We are of the view that as soon as....
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....9(4) shall furnish the same within 7 days of receipt of such request. The Ld. Counsel for the Appellant argues that since only 2 days' notice was provided in the notice of 21.06.2024, the same would be in utter derogation to the procedural requirement and legislative intent and necessity providing for 7 days under Section 99 (5) of the I & B Code, 2016, and hence the impugned order of 21.10.2024 cannot be sustained. 12. It has been argued to the contrary by the Ld. Counsel for the Respondent that, though as per Notice of 21.06.2024, only two days' time was granted to submit information, that will not materially affect the right of the Appellant, because on 29.06.2024 the Appellant sought a copy of the company petition and 5 days from receipt of the said petition to provide the information, that he provided the copy of said petitions on 03.07.2024, reminding him to submit the information as called for by the notice of 21.06.2024, that he waited till 23.07.2024 for the required information and in the absence its receipt he filed his report on the Section 95 of the I & B Code, 2016, application on 23.07.2024. However, this argument made by Ld. Counsel for the Respondent in the li....
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....n such information has been outlined in Section 99(4) & Section 99 (5) of the I & B Code, 2016. Though calling for such information is purely at the discretion of Resolution Professional, but it will have to comply with the conditions of time frame prescribed under Section 99 (5) of the I & B Code, 2016. 15. Meaning thereby, the judgment of Surendra B. Jiwrajka (Supra) did not take into account a right, which stands created by exercise of wisdom by the Resolution Professional of calling for an explanation/information under Section 99 (4) of the I & B Code, 2016. Hence the principle, which has been attempted to be borrowed from the judgment of Surendra B. Jiwrajka (Supra) may not be applicable when the Resolution Professional himself has already exercised its discretion and had issued a notice on 21.06.2024. In that eventuality, if the spirit of Section 99 (5) of the I & B Code, 2016, is required to be complied with, it has to be complied with in a symphonised reading of Section 99 (5) of the I & B Code, 2016, and that would be an independent provision, to be read in the light of the ratio laid down in the judgment of Surendra B. Jiwrajka (Supra). 16. The Ld. Counsel for the Respo....