Rajinder Kapoor Proprietor R.K.Kapoor ... vs Anil Kumar Interim Resolution ...

Rajinder Kapoor Proprietor R.K.Kapoor & Co. . . .Appellant

Versus

Anil Kumar Interim Resolution Professional & Ors. ....Respondents

Present: For Appellant: Mr. Sanjay Kumar Chhetry, Advocate

And Company Appeal (AT) (Insolvency) No. 200 of 2017

IN THE MATTER OF:

Ashwini Kumar Prabhakar Director Rolex Cycles Pvt. Ltd. .Appellant

Versus

Anil Kumar Interim Resolution Professional & Ors. ...Respondents

Present: For Appellant: Mr. Arun Francis, Advocate

ORDER

22.09.2017 - The appellants have challenged the order dated 8th

September, 2017 passed by the Adjudicating Authority (National

Company Law Tribunal), Chandigarh Bench, Chandigarh in CA Nos.

122/2017 with C.A. Nos. 123/2017 & 124/2017 in CP (IB) No.

37/Chd/Pb/2017.

2. Learned Counsel for the appellant(s) submits that the term of

'Interim Resolution Professional' (thirty days) has already expired. Thereafter, the Adjudicating Authority was required to appoint

'Insolvency Resolution Professional'.

3. Referring to provisions of 'Insolvency and Bankruptcy Code, 2016

(hereinafter referred to as "I&B Code") while we observed that it is open

for the Adjudicating Authority to allow the 'Interim Resolution

Professional' to continue as Resolution Professional, learned Counsel for

the appellants submits that the Committee of Creditors has already

decided to remove the present 'Interim Resolution Professional' and to

appoint another 'Insolvency Resolution professional'.

4. In this connection, we may refer to the provisions of Section 27 of

the 'I&B Code' which deals with replacement of Resolution Professional

by Committee of Creditors, which reads as follows: -

"27. Replacement of resolution professional by

committee of creditors. - (1) Where, at any time during

the corporate insolvency resolution process, the

committee of creditors is of the opinion that a resolution

professional appointed under section 22 is required to be

replaced, it may replace him with another resolution

professional in the manner provided under this section.

(2) The committee of creditors may, at a meeting, by a vote

of seventy-five per cent, of voting shares, propose to

replace the resolution professional appointed under

section 22 with another resolution professional. -3-

(3) The committee of creditors shall forward the name of

the insolvency professional proposed by them to the

Adjudicating Authority.

(4) The Adjudicating Authority shall forward the name of

the proposed resolution professional to the Board for its

confirmation and a resolution professional shall be

appointed in the same manner as laid down in section

16.

(5) Where any disciplinary proceedings are pending

against the proposed resolution professional under sub-

section (3), the resolution professional appointed under

section 22 shall continue till the appointment of another

resolution professional under this section."

5. In view of the aforesaid provision, we are of the view that the

Adjudicating Authority is duty bound to consider the name of another

'Resolution Professional', if proposed by the Committee of Creditors or

may call for name from the 'Insolvency and Bankruptcy Board of India',

if no name has been proposed. We hope and trust that the Adjudicating

Authority will act in accordance with law, as quoted above, and pass

appropriate order on the next date of hearing.

6. Till appropriate order in this regard is passed by the Adjudicating

Authority, the Adjudicating Authority will not give effect to the impugned

order and directions to the extent it is against the provisions of 'I&B 4

Code'. However, till the regular 'Insolvency Resolution Professional' is

appointed, the Interim Resolution Professional may be asked to perform

the day to day routine work, strictly in accordance with the provisions of

the 'I&B Code'.

7. Both the appeals stand disposed of with aforesaid observations and

directions. However, in the facts and circumstances, there shall be no

order as to cost.

(Justice S.J. Mukhbpadhaya) Chairperson

(Justice A.I.S. Cheema) (Balvinder Singh) Member (Judicial) Member(Technical)

ar