TMI Blog2017 (10) TMI 569X X X X Extracts X X X X X X X X Extracts X X X X ..... ol.) No. 126 of 2017 - - - Dated:- 30-8-2017 - Mr. S.J. Mukhopadhaya And Mr. Balvinder Singh, JJ. For The Appellant : Mr. Pawan Sharma and Ms. Arpita Yadav, Advocates ORDER The appellant who claimed to be 'Financial Creditor' filed an application under section 7 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as I B Code ) for initiation of 'Corporate Insolvency Resolution Process' against the Respondents-A4/s. Brys International Pvt. Ltd. Ors. ('Corporate Debtor'). Ld. Adjudicating Authority (National Company Law Tribunal), Principal Bench, New Delhi, by impugned order dated 22nd June, 2017 dismissed the application under section 7 of the 'I B Code' preferred by appellant with the following observations: - On reading of the above 2 sub - sections, it is apparent that while there is a provision for the Adjudicating Authority to make a reference to the Board for a recommendation of an Insolvency professional, in the case of an operational creditor, there is no such provision in the case of a financial creditor . The instant application has been filed under section 7 of IBC as a financial credi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted facts, the impugned order dated 22nd June, 2017 cannot be sustained and the matter is required to be remitted back to the Ld. Adjudicating Authority for admission of the case, if the application is otherwise complete. 6. To determine the question as to whether it is mandatory for the 'Financial Creditor' to propose the name of an 'Interim Resolution ProfessiOnal' in the application under section 7 of the 'I B Code', it is desirable to notice the relevant provisions. 7. As per clause (b) of Sub-section (3) of Section 7 the 'Financial Creditor' required to furnish name of the resolution professional proposed to act as an 'Interim Resolution Professional', the relevant portion of which reads as follows: - 7 . Initiation of corporate insolvency resolution process by financial creditor . - ( 1 ) A financial creditor either by itself or jointly with other financial creditors may file an application for initiating corporate insolvency resolution process against a corporate debtor before the Adjudicating Authority when a default has occurred . Explanation . - For the purposes of this subsection, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rational debt; ( c ) a copy of the certificate from the financial institutions maintaining accounts of the operational creditor confirming that there is no payment of an unpaid operational debt by the corporate debtor; and ( d ) such other information as may be specified . ( 4 ) An operational creditor initiating a corporate insolvency resolution process under this section, may propose a resolution professional to act as an interim resolution professional . xxx xxx xxx 9. From the aforesaid provision, it is clear that the 'Operational Creditor' may provide the name of an 'Interim Resolution Professional' and in a particular case, the 'Operational Creditor' may not provide the name of the 'Operational Creditor'. 10. In so far the 'Corporate Applicant' is concerned, in their case provision has been made under clause (b) of sub-section (3) of Section 10 to furnish the name of 'Interim Resolution Professional', as quoted below: - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olution professional . -( 1 ) The Adjudicating Authority shall appoint an interim resolution professional within fourteen days from the insolvency commencement date . ( 2 ) Where the application for corporate insolvency resolution process is made by a financial creditor or the corporate debtor, as the case may be, the resolution professional, as proposed respectively in the application under section 7 or section 10, shall be appointed as the interim resolution professional, if no disciplinary proceedings are pending against him . ( 3 ) Where the application for corporate insolvency resolution process is made by an operational creditor and - ( a ) no proposal for an interim resolution professional is made, the Adjudicating Authority shall make a reference to the Board for the recommendation of an insolvency professional who may act as an interim resolution professional; ( b ) aproposal for an interim resolution professional is made under sub - section ( 4 ) of section 9, the resolution professional as proposed, shall be appointed as the interim resolution professional, if no disciplinary proceedings are pending against him ..... X X X X Extracts X X X X X X X X Extracts X X X X
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