TMI Blog2022 (1) TMI 162X X X X Extracts X X X X X X X X Extracts X X X X ..... ing regarding default or not - HELD THAT:- There cannot be any dispute with the statutory scheme as contained in Section 97 that when Application is filed by the Resolution Professional under Section 95, the Adjudicating Authority shall direct the Board within seven days of the date of the Application to confirm that disciplinary proceedings pending against the Resolution Professional or not and the Board was required within seven days to communicate in writing either confirming the appointment of the Resolution Professional or rejecting the appointment of the Resolution Professional and nominating another Resolution Professional - looking into the facts of the present case where it is not a case of the Appellants before us that any discip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chairperson, [Justice Jarat Kumar Jain] Member (Judicial) And [Dr. Alok Srivastava] Member (Technical) For the Appellant : Mr. G. Sai Krishna Kumar, Mr. Prakhar Tandon, Mr. Amrut Joshi, Advocates For the Respondents : Mr. Sunil Fernandes, Mr. Darpan Sachdeva and Mr. Shubham Sharma, Advocates for R1. Mr. Sudha Bhushan, (RP) ORDER ( Through Virtual Mode ) Heard Learned Counsel for the Appellants as well as Learned Counsel appearing for the Respondents. With the consent of Learned Counsel for the parties, Appeals itself have been heard at the stage of admission finally. 2. These Appeals have been filed against judgment and order dated 30.09.2021 passed by the Adjudicating Authority (National Company Law Tribunal), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced reliance on the judgment of this Tribunal dated 12.08.2021 in Company Appeal (AT) (Ins.) No. 316 of 2021- Mr. Ravi Ajit Kulkarni vs. State Bank of India . 4. We have heard Mr. Sunil Fernandes, Learned Counsel for the Respondents. He submits that insofar as the appointment of the Resolution Professional is concerned, it is not the case of the Appellant that there was any disciplinary proceeding pending against the Resolution Professional. Hence, the submission is only a technical submission. It is submitted that the Adjudicating Authority has list of the Resolution Professionals against whom disciplinary proceedings are pending and no disciplinary proceeding is pending against the Resolution Professional. As no disciplinary proceedin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here 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 appoint the resolution professional recommended under sub-section (2) or as nominated by the Board under sub-section (4). (6) A resolution professional appointed by the Adjudicating Authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that Adjudicating Authority was not required at the stage when report was still to be filed by the Resolution Professional to record a finding regarding default, the said submission is fully supported by the judgment of this Tribunal in the above case namely- Mr. Ravi Ajit Kulkarni (supra) in which default has been dealt with in Paragraphs 44 and 47 which is to the following effect:- 44. In substance, once the application is filed (as per Section 95, 96 read with Rule 10) the Adjudicating Authority has to act on it, and following principles of natural justice, give limited notice to Personal Guarantor to appear referring to the Interim Moratorium that has commenced as per terms of Section 96. Then the next stage is of appointing R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had made observations to the following effect at page 33:- Based on the submissions made by the Applicant and the documents produced and placed on record before this Bench, the Bench has no doubt in its mind that there is a default on the part of the Personal Guarantor by not fulfilling the debt owed to the Corporate Debtor, i.e., Anoushka Medicare Diagnostics Private Limited as per the Deed of Personal Guarantee entered between the parties through the Deed of Personal Guarantee dated 01.08.2017. 10. Learned Counsel for the Respondents submit that those observations are only prima facie observations which did not vitiate the order of the Adjudicating Authority. Be that as it may, in view of the judgment of this Tribunal in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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