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TMI Blog2025 (5) TMI 857X X X X Extracts X X X X X X X X Extracts X X X X ..... o.150/2024, Ashwani Kumar Bhatia Vs Canara Bank, Asset Recovery Management Branch & Anr., challenges the Impugned Order dated 19.03.2024, as it has been passed by the Learned NCLT, Chennai in CP(IB)/58(CHE)/2024, being the proceedings, which have been drawn under Section 95(1) of I & B Code, 2016. Primarily, the Appellants in the capacity of being personal guarantor had come up with the case that they being the Managing Director of the M/s. ARS Energy Private Limited (Corporate Debtor) had executed a Personal Guarantee Deed on 29.06.2017, for the purposes of securing financial assistance availed by the company for a sanctioned amount aggregating to Rs.397.64 crores, that the said loan amount was availed by the Corporate Debtor from a consortium of banks with its lead bank being the Canara Bank (who is Respondent No.1 herein), that the total outstanding dues as on 29.09.2023 stood at as 305.22 crore, that the Corporate Debtor could not pay the monthly instalments towards the sum borrowed and the loan account was declared as NPA on 29.08.2022, that Demand Notice was issued by the 1st Respondent under Section 13(2) of the SARFAESI Act, 2002 on 20.09.2023, and that the Possession Noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Resolution Professional. Primarily, if the provision contained under Section 97 of the I & B Code, is taken into consideration, it is the sole prerogative, and power which is vested with the Learned Adjudicating Authority to appoint the Resolution Professional for the purposes of carrying out the proceedings under Section 95. Section 97 which is extracted hereunder, which contemplates the process of appointment of a Resolution Professional and it has nowhere carved out an exception nor an avenue for the Personal Guarantor as against whom the proceedings under Section 95 have been initiated, to have any say in relation to the process adopted for the appointment of the Resolution Professional. Section 95 & 97 of I & B Code are extracted hereunder: - "95. Application by creditor to initiate insolvency resolution process.-(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 this section by submitting an application. (2) A creditor may apply under sub-section (1) in relation to any partnership debt owed to him for initiating an insolven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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 under sub-section (5) shall be provided a copy of the application for insolvency resolution process". Primarily, the gist of the argument of the Learned Counsel for the Appellants who had been the petitioners in the respective Company Petitions is that, at the stage when the Learned Adjudicating Authority was appoints the Resolution Professional under Section 97, no consultation of any nature whatsoever is required to be made with the creditors who are instrumental in the initiation of proceedings under Section 95, as it may vitiate the process and influence the decision of Learned Adjudicating Authority which can be detrimental to them. The Appellants further contend that consultation with Financial Creditor during appointment of Resolution Professional would be in violation of Section 97 of I & B Code and particularly, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss there is an admission of Section 95 proceedings by passing of an order under Section 100. Thus the stages of the proceedings from Section 95 to Section 100 do not have any adjudicatory effect and since it would be inclusive of Section 97 in itself, the entire cause agitated by the Appellant in the Company Petition as well as in the Company Appeal cannot be subjected to a judicial scrutiny either by the NCLT or this Appellate Tribunal as against the order passed by the NCLT. It is exclusively on the aforesaid ground that the Learned Tribunal has observed that since the entire exercise of powers of appointment of a Resolution Professional is being exclusively vested with the Learned Adjudicating Authority and particularly, the personal guarantor has got no role to play till the stage under Section 100 is achieved, and accordingly hold that the proceedings drawn by the Appellant by way of the aforesaid Company Petition is not tenable. Further, if the Order of the Learned Tribunal is considered, the Learned Tribunal has protected the interest of the Appellant in the light of the provisions contained under the I & B Code, where all objections at the hands of the Appellant have been ..... X X X X Extracts X X X X X X X X Extracts X X X X
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