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TMI Blog2021 (6) TMI 320X X X X Extracts X X X X X X X X Extracts X X X X ..... Limited. 2. In so far as the Personal Guarantors to Corporate Debtors is concerned, the Hon'ble Supreme Court of India in the matter of Lalit Kumar Jain vs. Union of India & Ors. in Transferred Case (Civil) No. 245/2020 has upheld the vires of the notification issued by the Central Government vide S.O. 4126(E) dated 15.11.2019, in so far as it relates to coming into force of Insolvency and Bankruptcy Process of Personal Guarantors to Corporate Debtor. Thus, when a Corporate Insolvency Resolution Process in relation to Corporate Debtor is pending before this Adjudicating Authority, then as per Section 60(2) of IBC, 2016 the NCLT would be the competent forum to file an Application for Personal Guarantor in relation to such Corporate Debtor. The Corporate Insolvency Resolution Process in respect of the Corporate Debtor was ordered by this Adjudicating Authority on 20.03.2018. Hence, the present Application in respect of the Insolvency and Bankruptcy proceedings of the Personal Guarantor of Corporate Debtor is filed by the Creditor before this forum. 3. As far as the present Application is concerned, since it pertains to the Insolvency Resolution Process of Individuals, it is nec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) If the application under section 94 or 95 is filed through a resolution professional, the Adjudicating Authority shall direct the Board within seven days of the date of the application to confirm that there are no disciplinary proceedings pending against resolution professional. (2) The Board shall within seven days of receipt of directions under sub-section (1) communicate to the Adjudicating Authority in writing either- (a) confirming the appointment of the resolution professional; or (b) rejecting the appointment of the resolution professional and nominating another resolution professional for the insolvency resolution process. (3) Where an application under section 94 or 95 is filed by the debtor or the creditor himself, as the case may be, and not through the resolution professional, the Adjudicating Authority shall direct the Board, within seven days of the filing of such application, to nominate a resolution professional for the insolvency resolution process. (4) The Board shall nominate a resolution professional within ten days of receiving the direction issued by the Adjudicating Authority under sub-section (3). (5) The Adjudicating Authority shall by order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional shall examine the application and ascertain that- (a) the application satisfies the requirements set out in section 94 or 95; (b) the applicant has provided information and given explanation sought by the resolution professional under sub-section (4). (7) After examination of the application under sub-section (6), he may recommend acceptance or rejection of the application in his report. (8) Where the resolution professional finds that the debtor is eligible for a fresh start under Chapter II, the resolution professional shall submit a report recommending that the application by the debtor under section 94 be treated as an application under section 81 by the Adjudicating Authority (9) The resolution professional shall record the reasons for recommending the acceptance or rejection of the application in the report under sub-section (7). (10) The resolution professional shall give a copy of the report under sub-section (7) to the debtor or the creditor, as the case may be. 6. Section 99 of IBC, 2016 contemplates that upon appointing the Resolution Professional in terms of Section 97(5) of IBC, 2016, the Resolution Professional is required to examine the Application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equential reading of the above extracted provisions would manifest the fact that immediately upon filing of the Application under Section 94 or 95 of IBC, 2016, this Adjudicating Authority is required to refer the matter to the Board viz. the Insolvency and Bankruptcy Board of India, for approving the name of the Resolution Professional. However, it is to be noted that, this Adjudicating Authority is required to satisfy itself, before referring to the Board the name of the Resolution Professional for its confirmation, as to whether the Application filed under Section 95 of IBC, 2016 satisfies the conditions as laid out in sub - section (4) of Section 95 of IBC, 2016 and they are; (a) the debts owed by the debtor to the creditor or creditors submitting the application for insolvency resolution process as on the date of application; (b) the failure by the debtor to pay the debt within a period of fourteen days of the service of the notice of demand; and (c) relevant evidence of such default or non-repayment of debt. 9. In relation to Section 95(4)(a), it is seen from the Application filed, that one M/s. Arohi Infrastructure Private Limited(hereinafter referred to as "Principal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication has been moved by an Insolvency Professional, viz. Sripriya Kumar bearing Registration No. IBBI/IPA-001/IP-P00771/2017-2018/11316. Hence as per Section 97(2) of IBC, 2016 we hereby direct the Board viz. The Insolvency and Bankruptcy Board of India, to confirm that there are no disciplinary proceedings pending against Resolution Professional, within a period of 7 days from the date of this order. 13. At this juncture, it is necessary to refer to Rule 8 of the Insolvency and Bankruptcy (Application to Adjudicating Authority for Insolvency Resolution Process for Personal Guarantors to Corporate Debtor), Rules, 2019, wherein it states as follows; 8. Confirmation or nomination of insolvency professional.-- (1) For the purposes of sub-section (2) of section 97 and sub-section (5) of section 98, the Board may share the database of the insolvency professionals, including information about disciplinary proceedings against them, with the Adjudicating Authority from time to time. (2) For the purposes of sub-section (4) of section 97 and sub-section (3) of section 98, the Board may share a panel of insolvency professionals, who may be appointed as resolution professionals, wi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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