TMI Blog2022 (6) TMI 362X X X X Extracts X X X X X X X X Extracts X X X X ..... uarantor, notice of the application already filed before the Adjudicating Authority. Section 95(5) requires the Creditor to provide a copy of the application made under sub-section (1) , to the Debtor. Thus, serving advance copy is not contemplated. The arguments that Section 98 provides for replacement of the Resolution Professional and hence the Guarantor should have an opportunity to seek replacement of Resolution Professional and hence he should be heard before appointment of IRP was also considered and held that going through Section 98 of IBC, 2016, it is found that Section 98 is not stage specific. Section 98 itself shows that the section could be resorted to even at stages like implementation of repayment plan which would be a stage beyond Section 116, where implementation and supervision of repayment plan is provided for - Section 99 (4) of IBC, empowers the Resolution Professional to seek further information or explanation in connection with the application as may be required from the Debtor or the Creditor or any other person, who, in the opinion of the Resolution Professional, may provide such information. Hence it is not as if, the Debtor is not provided an audienc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner/Financial Creditor. The outstanding debt and default as on 31.07.2021 is Rs. 129,58,95,550.79 Paisa. The Corporate Debtor/Respondent No. 2, after availing the aforesaid credit facilities, violated the terms and committed default in repaying the outstanding amounts. The Petitioner issued demand notice dated 03.09.2021 to the Respondents for repayment of the outstanding amounts. The said notice has been served on the 1st Respondent. Inspite of receipt of notice, the Respondents did not come forward to pay the outstanding amounts. The Petitioner also filed a Company Petition under Section 7 of IBC against Respondent No. 2, before this Tribunal and the same was admitted on 13.03.2018 by initiating the Corporate Insolvency Resolution Process against the Corporate Debtor/Respondent No. 2. Hence, this Application, seeking to initiate CIRP against Respondent No. 1. 3. Notice was issued to the Respondents and Mr. S.V.S. Chowdary, Advocate appeared on behalf of the Respondent No. 1 and filed the preliminary counter along with his vakalathnama, raising certain preliminary objections, which are that the Petitioner/Financial Creditor does not have locus standi, since personal guara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in terms of Section 97 100 of IBC, 2016 no right of audience can be given to the Respondents at a stage before appointing the IRP. In support of the said reasoning, a judgment of the Bombay High Court in Writ Petition (L) No. 21271 21272 of 2021 between Surendm B. Jiwrajka vs Omkara Assets Reconstruction can be looked into. It was held by the Bombay High Court that from an analysis of the provisions contained in sections 95 to 100 of IBC, it can be seen that a definite time-line has been provided at each stage of the proceeding. That apart, the interim moratorium in terms of Section 96, which commences from the date of the Application, remains in force till the date of admission of such application under section 100 of IBC, Though time-lines have been prescribed at each stage of the proceeding, leading to acceptance or rejection of the application under section 100, no such time-line has been prescribed for submission of report by the resolution professional, though section 100 provides that the adjudicating authority 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsferred case (Civil No. 245/2020) dated 21.05.2021. The said judgment was relied upon by the NCLAT and it was observed that the Supreme Court discussed in Para 81 of the judgment in Lalit Kumar Jain, that it was evident that the method adopted by the Central Government to bring into force different provisions of IBC had a specific design which was to fulfil the objectives underlying the code, having regard to its priorities. The NCLAT has considered Section 95(5) of IBC, 2016 which requires the Creditor to provide copy of the application under sub-section (1) to the debtor and felt that it has to be read with Rule 3(1)(g) which is as under: Rule 3(1)(g): serve means sending any communication by any means, including registered post, speed post, courier or electronic means, which is capable of producing or generating an acknowledgement of receipt of such communication: Provided that where a document cannot be served in any of the modes, it shall be affixed at the outer door or some other conspicuous part of the house or building in which the addressee ordinarily resides or carries on business or personally works for gain. It held that, it is evident from a reading o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 99 of IBC. Any amount of audience is provided to the debtor before the Resolution Professional submits a report. Section 99 (2) of IBC gives an opportunity to the debtor to prove repayment of debt claimed as unpaid by the creditor. Section 99 (4) of IBC, empowers the Resolution Professional to seek further information or explanation in connection with the application as may be required from the Debtor or the Creditor or any other person, who, in the opinion of the Resolution Professional, may provide such information. Hence it is not as if, the Debtor is not provided an audience before the submission of the report. Hence I do not see any violation of principles of natural justice by not giving an opportunity to the Debtor for making his submissions before the appointment of IRP, As observed by the Supreme Court in the judgment of Laiit Kumar Jain case, it is in its wisdom that the legislature has enacted various provisions which are unambiguous and do not leave any scope for interpretation, with regard to the issuance of notice and giving the right of audience to the Debtor at the stage of appointment of IRP. It can be noted that the judgment of Bombay High Court in Surendra B. J ..... X X X X Extracts X X X X X X X X Extracts X X X X
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