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TMI Blog2022 (10) TMI 927X X X X Extracts X X X X X X X X Extracts X X X X ..... prayer is also against the Personal Guarantor of the Corporate Debtor. Hence, this Application can be treated as having been filed only against Respondent No. 1 and that Respondent No. 2 is only formally added. 2. The facts as stated in the Synopsis are as follows: The Corporate Debtor/Respondent No. 2 has availed various credit facilities a total sum of INR 33,18,09,761.02/- from the Petitioner/Financial Creditor from time to time. Respondent No. 1 stood as a Personal Guarantor to the credit facilities availed by the Corporate Debtor/Respondent No. 2. Respondent No. 1 executed Form Guarantees for advances and credits dated 13.03.2013, 29.03.2014, September-2016 & 01.11.2016 in favour of the Petitioner/Financial Creditor. The Corporate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder sub-section (1) of Section 97 of IBC, 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. Under Sub-Section (3) of Section 97 of IBC "Where an application under section 94 or 95 is filed by the debtor or the creditor himself, 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." Under Sub-Section (4) of Section 97 of IBC "The Board shall nomi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l, 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 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. 5. It was further held that though the legislature itself has provided in Section 99(10) that a copy of the report of the Resolution Professional should be furnished to the debtor or creditor, thus complying with the requirement of the principles of natural justice, it would be in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uired. The NCLAT judgment in Mr. Ravi Ajit Kulkarni's case considered the contention raised therein that the debtor did not get opportunity to seek replacement of IRP, since he did not have notice of the fact of appointment of IRP. The Supreme Court considered the vires and validity of a notification dated 15.11.2019, in Lalit Kumar Jain Vs. Union of India and others in transferred 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 fulfill the obje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or and the Corporate Debtor for whom the Guarantor is a Personal Guarantor. The procedure thus prescribed will give the Personal Guarantor, 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. 6. 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. Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Lalit 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. Jiwrajka vs. Omkara Assets Reconstruction case was carried to the Supreme Court a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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