TMI Blog2018 (6) TMI 1063X X X X Extracts X X X X X X X X Extracts X X X X ..... Financial Creditors herein having 100% voting right has accepted that the Resolution Professional (appellant herein) was not assisting the Adjudicating Authority to its satisfaction during hearing. The Resolution Professional (appellant herein) was required to examine the Resolution Plan but had not stated that the plan submitted by him provides for all the requirements as provided under sub-section (2) of Section 30. The Committee of Creditors i.e. Financial Creditor, who has 100% right is also not satisfied with the Resolution Professional and taken plea that they are happy with Mr. T.S.N. Raja, the Liquidator who has been appointed and performing the duty since September, 2017 in accordance with law. Thus we hold that the Adjudicating Authority has jurisdiction to remove the resolution professional if it is not satisfied with its functioning of the resolution professional, which amounts to non-compliance of sub-section (2) of Section 30 of the I & B Code. For the reasons aforesaid no interference is called for - appeal dismissed. - Company Appeal (AT) (Insolvency) No. 177 of 2017 - - - Dated:- 31-1-2018 - Mr. S.J. Mukhopadhaya And Mr. Bansi Lal Bhat, JJ. For The Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eplacing the appellant as resolution professional to liquidator and not appointing him as liquidator is beyond its jurisdiction. 3. The learned counsel appearing on behalf of the appellant submitted that as per sub-section (1) of Section 34 the Adjudicating Authority while passing the order for liquidation of the corporate debtor under Section 33 is required to appoint the resolution professional as the liquidator for the purpose of resolution process under Chapter II. The Adjudicating Authority can only replace the resolution processional, for the reasons mentioned in sub-section (4) of Section 34. 4. It was submitted that resolution plan was not rejected for failure to meet any requirement and in fact the draft resolution was not approved. Therefore, the stage of sub-section (2) of Section 30 never reached. 5. Learned counsel appearing on behalf of the Insolvency and Bankruptcy Board of India (hereinafter referred to as the IBBI ) submitted that the question raised being a question of law can only be decided by the Tribunal. However, according to her, IBBI is not empowered to propose any name of the Liquidator. The IBBI has already uploaded the list of registered resolu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the parties and perused the record. 11. The corporate insolvency resolution process has been initiated at the instant of the corporate applicant who filed the application under Section 10 and propose the name of interim resolution professional. After interim resolution professional, the resolution professional is appointed in accordance with law. The relevant provisions for appointing and removal of resolution professional / liquidator are noticed and discussed below. 12. Section 22 deals with appointment of resolution professional (distinct from interim resolution professional), and reads as follows : 22. Appointment of resolution professional - ( 1) The first meeting of the committee of creditors shall be held within seven days of the constitution of the committee of creditors. ( 2) The committee of creditors, may, in the first meeting, by a majority vote of not less than seventy-five per cent. of the voting share of the financial creditors, either resolve to appoint the interim resolution professional as a resolution professional or to replace the interim resolution professional by another resolution professional. ( 3) Where the committee of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the insolvency professional proposed by them to the Adjudicating Authority. ( 4) The Adjudicating Authority shall forward the name of the proposed resolution professional to the Board for its confirmation and a resolution professional shall be appointed in the same manner as laid down in section 16. ( 5) Where any disciplinary proceedings are pending against the proposed resolution professional under sub-section (3), the resolution professional appointed under section 22 shall continue till the appointment of another resolution professional under this section. 15. The resolution professional under sub-section (2) of Section 30, the resolution professional is required to examine each resolution plan received by him to confirm that the resolution plan provides for the requirement as mentioned in clauses (a) to (f) of sub-section (2) of Section 30. For a proper appreciation, it is desirable to quote sub-section (2) of Section 30, as quoted below: 30. Submission of resolution plan - ( 1) xxx xxx xxx ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Adjudicating Authority shall by order replace the resolution professional, if- ( a) the resolution plan submitted by the resolution professional under section 30 was rejected for failure to meet the requirements mentioned in sub-section (2) of section 30; or ( b) the Board recommends the replacement of a resolution professional to the Adjudicating Authority for reasons to be recorded in writing. ( 5) For the purposes of clause (a) of sub-section (4), the Adjudicating Authority may direct the Board to propose the name of another insolvency professional to be appointed as a liquidator. ( 6) The Board shall propose the name of another insolvency professional within ten days of the direction issued by the Adjudicating Authority under sub-section (5). ( 7) The Adjudicating Authority shall, on receipt of the proposal of the Board for the appointment of an insolvency professional as liquidator, by an order appoint such insolvency professional as the liquidator. ( 8) An insolvency professional proposed to be appointed as a liquidator shall charge such fee for the conduct of the liquidation proceedings and in such proportion to the value of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he resolution professional, apart from the Committee of Creditors, but it should be for the reasons and in the manner as provided under the relevant provisions. 22. From the stand taken by the Financial Creditor, we find that the Resolution Plan was filed by the Corporate Debtor itself which was rejected by the Committee of Creditors (Financial Creditor herein having 100% voting power). However, the Committee of Creditors (Financial Creditor SBI) have not recommend the name of any other person as the liquidator. The Financial Creditors herein having 100% voting right has accepted that the Resolution Professional (appellant herein) was not assisting the Adjudicating Authority to its satisfaction during hearing. The Resolution Professional (appellant herein) was required to examine the Resolution Plan but had not stated that the plan submitted by him provides for all the requirements as provided under sub-section (2) of Section 30. The Committee of Creditors i.e. Financial Creditor, who has 100% right is also not satisfied with the Resolution Professional and taken plea that they are happy with Mr. T.S.N. Raja, the Liquidator who has been appointed and performing the duty since ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
