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2021 (9) TMI 60 - AT - Insolvency and BankruptcySeeking appointment of Resolution Professional and calling report under Section 99 of the IBC - HELD THAT:- The Parliamentary intent was to treat personal guarantors differently from other categories of individuals. The intimate connection between such individuals and corporate entities to whom they stood guarantee, as well as the possibility of two separate processes being carried on in different forums, with its attendant uncertain outcomes, led to carving out personal guarantors as a separate species of individuals, for whom the Adjudicating authority was common with the corporate debtor to whom they had stood guarantee - The fact that the process of insolvency in Part III is to be applied to individuals, whereas the process in relation to corporate debtors, set out in Part II is to be applied to such corporate persons, does not lead to incongruity. What appears is that action against Personal Guarantor can be maintained during pendency of CIRP of Corporate Debtor or even later. The scheme which appears to be provided by the legislature appears to be that when application under Section 95 is "filed" by the Creditor/s by themselves or through Resolution Professional as per the prescribed format, the interim-moratorium kicks in when the application is filed - we are not accepting the fear expressed by the Appellant that how could the Resolution Professional appointed by the Creditor itself if appointed by the Adjudicating Authority deal with the application filed by himself for the Creditor and give Report. What the Resolution Professional under Section 99 would be doing was requiring the Debtor to furnish proof of repayment as per Section 99(2) and after doing the necessary spade work Resolution Professional has to recommend acceptance or rejection of the application with reasons. The decision making whether to admit or reject the application would be only by the Adjudicating Authority. The observations have been made by the Adjudicating Authority that the Corporate Guarantor (should have been only 'Guarantor') has not filed any submission and on date of hearing there was no representation. It appears that the Adjudicating Authority was of the view that service of 'Form C on 29th August, 2020 and 'Amended Form C' on 28th January, 2021 was the notice. Having gone through the Form and Rules and Regulations, we do not find that anywhere it is provided that when the Form is submitted it would also contain notice of date as to when the matter is coming up before the Adjudicating Authority. In the absence of any such requirement, we find that there has to be limited notice for presence conveying the "filing" of application and commencing of Interim Moratorium under Section 96 from date of filing (to be mentioned). The appointment of Mr. Ram Ratan Kanoongo as Resolution Professional is not disturbed. It is stated that he has already given report - Appeal allowed in part.
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