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2022 (3) TMI 57 - HC - Insolvency and BankruptcyMaintainability of applications filed before the NCLT against the personal guarantor - non-application of mind by the National Company Law Tribunal - applicability of law of limitation - HELD THAT:- Section 61 of the Insolvency and Bankruptcy Code provides that notwithstanding anything to the contrary contained under the Companies Act 2013, any person aggrieved by the order of the Adjudicating Authority under this part may prefer an appeal to the National Company Law Appellate Tribunal. The petitioners, therefore, have an efficacious alternate remedy. The proceedings under challenge are under the Insolvency and Bankruptcy Code. When the Code itself provides for an appellate remedy, this Court would not be justified in adjudicating on the sustainability of the order passed by the NCLT in writ proceedings. The Adjudicating Authority, under Section 100, is to decide whether to admit or reject the application for IRP. From a reading of Chapter III, Part III of the IBC, it is obvious that in the matter of initiating an IRP, the role of the Resolution Professional is limited to making appropriate recommendations to the Adjudicating Authority - Resolution Professional is required to give reasons in support of his recommendations. The Adjudicating Authority is the body which takes final decision in the matter. The Adjudicating Authority is not bound by the recommendation made by the Resolution Professional. In fact, a reading of other provisions in the IBC would make it abundantly clear that in the matter of issuing public notices inviting claims from the creditors and approving or rejecting repayment plan as also in passing Discharge Order, it is the Adjudicating Authority, who is the decision making authority, even though the Adjudicating Authority may not be justified in interfering with commercial wisdom of the Committee of Creditors. The Hon’ble Apex Court has held in Gujarat Urja Vikas Nigam Ltd. v. Amit Gupta and others [2021 (3) TMI 340 - SUPREME COURT] that merely because a duty has been imposed on Resolution Professional, it does not mean that the jurisdiction of NCLT is circumscribed. The argument of the petitioners that the role of Adjudicating Authority is reduced to that of a rubber stamp under the context of Sections 95, 97, 99 and 100 of the IBC, is hence not factually correct. This Court finds no illegality or unconstitutionality in Sections 95, 97, 99 or 100 of the IBC. Petition dismissed.
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