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TMI Blog2021 (9) TMI 256X X X X Extracts X X X X X X X X Extracts X X X X ..... Advocates for R2-RP. ORDER (Through Virtual Mode) This Appeal has been filed by the Appellant- Personal Guarantor of the Corporate Debtor- 'Xalta Foods & Beverages Pvt. Ltd.' against impugned orders dated 22nd March, 2021 and 9th June, 2021 passed by the Adjudicating Authority (National Company Law Tribunal, New Delhi Bench, Court-II) in CP No. (IB)-116(ND)2021. By the impugned order dated 22nd March, 2021, the Adjudicating Authority in a motion under Section 95 of the Insolvency and Bankruptcy Code, 2016 ("IBC" for short) appointed Respondent No.2 as the Resolution Professional and directed the Resolution Professional to make recommendations along with the reasons in writing for acceptance or rejection of the Application filed under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t issuance of notice. 4. We have heard Counsel for Respondent Nos.1 & 2 also. There is no dispute that CIRP was initiated against the Corporate Debtor and that the said matter is at the stage of liquidation. The Learned Counsel for the Respondents as well as the Learned Counsel for the Appellant have referred to judgment of this Tribunal dated 12th August, 2021 in Company Appeal (AT) (Insolvency) No. 316 of 2021- "Mr. Ravi Ajit Kulkarni vs. State Bank of India" and the Learned Counsel for both sides agree that the Personal Guarantor of Corporate Debtor may be given the opportunity before the Resolution Professional and orders on similar lines as in the matter of "Mr. Ravi Ajit Kulkarni vs. State Bank of India" could be passed. 5. In Judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has given the personal guarantee to the Applicant on behalf of the Corporate Debtor." 7. In our view, at the stage at which the matter stood such finding in advance should not have been recorded as the said stage would be after receipt of Report under Section 99 of the IBC when the matter is taken up under Section 100 of the IBC. In para 42 of judgment in the matter of "Mr. Ravi Ajit Kulkarni vs. State Bank of India" we have held as follows:- "42. However, considering the judgment of the Hon'ble Supreme Court in the matter of 'Swiss Ribbons', it appears to us that keeping principles of natural justice in view, limited notice of the application should be given to the Personal Guarantors of the Corporate Debtors. The limited notice has to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d did appear before the Adjudicating Authority to submit that the impugned order should be recalled. As such, the requirement of serving formal notice would not be necessary but the matter needs to be sent back to the Adjudicating Authority so that the procedure is duly followed as indicated by us in the matter of "Mr. Ravi Ajit Kulkarni vs. State Bank of India". 10. For the above reasons, the Appeal is partly allowed. The findings and observations made by the Adjudicating Authority in para 12 of the first impugned order dated 22.03.2021 and the observations in the second impugned order dated 09.06.2021 that the notice is not necessary are set aside. The appointment of Respondent No.2 as the Resolution Professional is not disturbed. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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