2024 (11) TMI 1471 - Tri - IBC

Admission of application under Section 95(1) of the Insolvency and Bankruptcy Code 2016 - initiation of CIRP against the Personal Guarantor / Respondent - HELD THAT - Section 95 of IBC provides that a creditor may apply either by himself or jointly with other creditors or through a Resolution Professional to the Adjudicating Authority for initiating an Insolvency Resolution Process under the Section by submitting an application. The application shall be accompanied with details and documents relating to the debts or by the debtor to the creditor as on the date of application failure by the debtor to pay the debt within a period of 14 days of the service of the Notice of Demand and the relevant evidence of such default or non-payment of debt.It also provides that the creditor shall provide a copy of the application to the debtor and the application shall be in such form and manner. Hon ble Supreme Court in the matter of Dilip B Jiwrajka Vs- Union of India Ors 2024 (1) TMI 33 - SUPREME COURT while dealing with the jurisdiction of NCLT in relation to adjudication of cases filed under Section 94 and 95 of IBC 2016 has held that no judicial adjudication is involved at the stages envisaged in Sections 95 to Section 99 of the IBC and also there is no violation of natural justice under Section 95 to Section 100 of the IBC as the debtor is not deprived of an opportunity to participate in the process of the examination of the application by the resolution professional. The Respondent / Personal Guarantor will be given an opportunity to file a reply once the RP has filed his Report under Section 99 of IBC 2016. Considering the facts Resolution Professional is appointed who will collate all the facts relevant to the examination of the application for the commencement of the Insolvency Resolution Process in respect of the Personal Guarantor - The Resolution Professional is directed to examine the application as set out in Section 97(6) of IBC 2016 who after examining may recommend for the acceptance / rejection of the application as provided under Section 97(6) of IBC 2016 within a period of 10 days as contemplated under Section 99(1) of IBC 2016. List this application for report / hearing on 05.12.2024.

Summary

Issues Presented and Considered

The Tribunal considered the following core legal questions:

• Whether the application filed under Section 95(1) of the Insolvency and Bankruptcy Code, 2016 (IBC) for initiating Insolvency Resolution Process against the Personal Guarantor is maintainable.
• The nature and scope of the adjudicatory authority's role under Sections 95 to 100 of the IBC in relation to insolvency proceedings against personal guarantors.
• The procedural requirements for initiating insolvency resolution against a personal guarantor, including the necessity and sufficiency of the demand notice under Rule 7(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority for Insolvency Resolution Process for Personal Guarantors to Corporate Debtor) Rules, 2019.
• The role and appointment of the Resolution Professional under Sections 97 and 99 of the IBC and the extent of judicial scrutiny at the initial stages of insolvency resolution process.
• Whether the application complies with the statutory requirements regarding debt particulars, default, and evidence of non-payment.

Issue-Wise Detailed Analysis

1. Maintainability of Application under Section 95(1) of IBC against Personal Guarantor

The legal framework governing this issue is Section 95(1) of the IBC, which permits a creditor to apply for initiating insolvency resolution against a personal guarantor of a corporate debtor. The application must be accompanied by details of the debt, evidence of default, and proof of service of demand notice.

The Tribunal noted the Petitioner's submission that the corporate debtor had availed credit facilities from the Petitioner and the Respondent had provided a personal guarantee. The total debt was quantified at Rs. 32.62 Crores as of 22.07.2024, with a default amount of Rs. 15.69 Crores as on 11.02.2009. The actual date of default was 30.04.2009. A Debt Recovery Certificate (DRC) was issued on 27.07.2021 by the Debt Recovery Tribunal (DRT), Chennai, confirming the debt and default. The Petitioner also filed relevant account statements, the DRT order, and the DRC as evidence.

The Tribunal observed that the Petitioner had issued a demand notice to the personal guarantor on 20.07.2023 under Rule 7(1) of the Insolvency and Bankruptcy Rules, 2019, fulfilling the procedural requirement of serving a demand notice before initiating insolvency proceedings.

Applying the law to facts, the Tribunal found that the Petitioner complied with the statutory requirements under Section 95(1) and accompanying rules, establishing a prima facie case for initiating insolvency resolution against the personal guarantor.

2. Nature of Adjudicatory Authority's Role under Sections 95 to 100 of IBC

The Tribunal relied heavily on the Supreme Court's authoritative interpretation in a landmark judgment concerning the jurisdiction and functions of the adjudicating authority under Sections 94 to 100 of the IBC. The Court summarized that no judicial adjudication occurs at the stages under Sections 95 to 99; rather, these provisions envisage a facilitative and recommendatory process.

Key points from the Supreme Court ruling include:

• The Resolution Professional (RP) appointed under Section 97 serves to collate facts and examine the application, submitting a recommendatory report on acceptance or rejection.
• The adjudicating authority does not conduct a judicial determination of 'jurisdictional facts' at the stage of appointing the RP.
• The debtor is not deprived of natural justice rights, as the RP's examination process allows participation and the adjudicating authority must observe natural justice principles when deciding under Section 100.
• The interim moratorium under Section 96 protects the debtor from further legal proceedings during the resolution process.
• The provisions do not violate constitutional guarantees under Articles 14 and 21.

The Tribunal applied these principles, emphasizing that the current stage involves appointment of the RP to examine the application and submit a report. No final adjudication on the merits of the insolvency application is undertaken at this stage.

3. Appointment and Role of Resolution Professional

The Petitioner proposed a Resolution Professional whose registration was verified on the IBBI database. However, as the proposed RP's Authorisation to Act (AFA) was expiring shortly, the Tribunal appointed an alternative RP with a valid AFA.

The RP was directed to examine the application as per Section 97(6) of the IBC and submit a recommendatory report within 10 days under Section 99(1). The RP's role is to investigate the facts relevant to the insolvency application and recommend acceptance or rejection to the adjudicating authority.

The Tribunal underscored the procedural mandate that the applicant must serve a copy of the application and order on the RP to enable proper examination.

4. Compliance with Procedural Requirements and Evidence of Default

The Tribunal carefully reviewed the Petitioner's submission of debt particulars, default amount, date of default, and supporting documents including the DRT order and Debt Recovery Certificate. The demand notice issued under Rule 7(1) was also scrutinized and found to be in order.

The Tribunal found that the evidence submitted was sufficient to establish the existence of debt and default, fulfilling the statutory preconditions for initiating insolvency resolution against the personal guarantor.

5. Treatment of Competing Arguments

The judgment does not indicate any substantive objections or competing arguments raised by the Respondent at this stage. The Tribunal noted that the Respondent would have an opportunity to file a reply and participate in the process once the RP submits the report. This approach aligns with the principle that no judicial adjudication occurs at the initial stage and natural justice is preserved.

Significant Holdings

The Tribunal's key determinations and legal principles include:

"No judicial adjudication is involved at the stages envisaged in Sections 95 to Section 99 of the IBC."

"The resolution professional appointed under Section 97 serves a facilitative role of collating all the facts relevant to the examination of the application for the commencement of the insolvency resolution process."

"The report to be submitted to the adjudicatory authority is recommendatory in nature on whether to accept or reject the application."

"No violation of natural justice under Section 95 to Section 100 of the IBC as the debtor is not deprived of an opportunity to participate in the process of the examination of the application by the resolution professional."

"The adjudicatory authority must observe the principles of natural justice when it exercises jurisdiction under Section 100 for the purpose of determining whether to accept or reject the application."

Further, the Tribunal concluded that the Petitioner had complied with the procedural and substantive requirements under the IBC and Rules, and accordingly appointed a Resolution Professional to examine the application and submit a report within the statutory timeframe.

The Tribunal scheduled the matter for further hearing upon receipt of the RP's report, thereby preserving the procedural safeguards and ensuring that the Respondent's rights would be protected in subsequent stages.