TMI Blog2021 (10) TMI 241X X X X Extracts X X X X X X X X Extracts X X X X ..... y shall take a decision either admitting or rejecting the application within 14 days from the date of submission of the report. That apart on a careful examination of section 100, before the adjudicating authority takes a decision to either admit or reject the application upon receipt of report from the resolution professional, the parties to the insolvency resolution process are required to be heard. Though the legislature itself has provided in section 99(10) that a copy of the report of the resolution professional be furnished to the debtor or to the creditor thus complying with the requirement of the principles of natural justice, it would be in the fitness of things and in furtherance of the principles of natural justice that the parties are also heard before the decision is taken by the adjudicating authority one way or the other under section (1) of section 100. There are no good ground to interfere with the impugned orders save and except that the resolution professional should submit the report within a definite time period. This is because under sub-section (1) of section 96 the interim moratorium automatically commences from the date of the application and continue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereunder:- 1. Ld. Counsel for the applicant presses this petition and submits that the respondent herein are the personal guarantors. Therefore, a Resolution Professional may be appointed and contends that the applicant has already proposed Snehal A. Kamdar to be appointed as a Resolution Professional. 2. Ld. Counsel for the respondent objected to the appointment of the RP in the present Insolvency Application and contends that the applicant herein has already been assigned the entire loan to J.M.Finance vide assignment agreement therefore present application under IBC is not maintainable. He also contends that Resolution professional has no power to decide the said issue, thus he submits that before proceeding further in the present matter, the Tribunal adjudicate the issue of maintainability of the present Insolvency application. 3. Ld. Counsel for the applicant objected to the said contentions of the Ld. Counsel for the respondent and submits that respondent has no right to object at this stage and he submits that he serve notices to the respondent only for the purpose of informing regarding the interim moratorium. He also drawn my attention to provision of Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he application to initiate insolvency resolution process. Notwithstanding such objection raised by the petitioner, Tribunal took the view that provisions of the IBC, more particularly from sections 95 to 100, do not contemplate entertaining any objection at that stage till the receipt of report from the resolution professional. Therefore, objection raised by the petitioner was rejected whereafter resolution professional was appointed and he was directed to submit report in terms of IBC. 5. Mr.Dwarkadas, learned senior counsel for the petitioner submits that the principal borrower was under corporate insolvency resolution process. The New India Co-operative Bank Limited which had sanctioned the term loan to the borrower had assigned all its rights, title and interest in the term loan to the respondent. In terms of the implemented resolution plan outstanding dues has been assigned to the JM Financial Asset Reconstruction Company, JM Finance ARC- March, 2018 Trust (ARC Trust). Therefore, respondent can no longer seek to enforce the loan which is already sold for consideration to the ARC Trust. This is a jurisdictional fact the existence of which is essential for the Tribunal to ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... process. As per sub-section (1), 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 section 95 by submitting an application. As per sub-section (4) the application under sub-section (1) should be accompanied by the details and documents mentioned therein. Sub-section (5) mandates that the creditor should provide a copy of the application made under subsection (1) to the debtor. 11. In terms of section 96(1) when an application is filed under section 94 (section 94 deals with application by debtor to initiate insolvency resolution process) or under section 95, an interim moratorium shall commence on the date of the application in relation to all the debts and shall cease to have effect on the date of admission of such application. During the interim moratorium period, all legal actions or proceedings pending in respect of such debt shall remain stayed and creditors shall not initiate any legal action or proceeding in respect of such debt. 12. Section 97 deals with appointment of resolution professional. Under sub-section (3) where an appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-section (9) the resolution professional is required to record reasons in both eventualities either recommending acceptance or rejection of the application. In terms of sub-section (10) the resolution professional shall give a copy of the report so prepared to the debtor or to the creditor, as the case may be. 15. That brings us to section 100 of IBC which deals with admission or rejection of the application. As per sub-section (1), the adjudicating authority shall within 14 days from the date of submission of the report under section 99 pass an order either admitting or rejecting the application referred to in sections 94 or 95, as the case may be. Sub-section (2) deals with the situation where the adjudicating authority admits an application under sub-section (1) and sub-section (4) deals with the situation where the application under sub-section (1) is rejected by the adjudicating authority. In either case under sub-section (3) a copy of such order is required to be provided to the creditor alongwith the report of the resolution professional within 7 days from the date of the order. 16. Thus from an analysis of the provisions contained in sections 95 to 100 of IBC, we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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