Case Title: Shravan Kumar Vishnoi v. Upma Jaiswal and Ors.
The NCLAT observed that the Resolution Professional is not required to take a decision regarding the ineligibility of the Resolution Applicant under Section 29A of the Insolvency & Bankruptcy Code, 2016.
This appeal has been filed by the Resolution Professional to challenge the Impugned Order dated 02.03.2022 by NCLT. The operative part of which reads thus:-
“5. When these provisions are read together along with the judgment of the Hon’ble Supreme Court cited above, what appears is that the RP is a facilitator and not a gatekeeper. In these circumstances, the ends of justice would be met if we direct the RP to place all Resolution Plans along with his opinion on the contravention or otherwise of the various provisions of the law before the CoC which should take a considered view in the matter, if not already done.”
In reply to the applicant’s submissions, the Respondent has contended refuting the submissions stating that the question as to whether the plan submitted by Ms Upma Jaiswal is to be rejected or approved is a question which needs to be decided by the CoC. The Resolution Professional at best can give his opinion with regard to the eligibility of the Resolution Applicant whether it conforms to Section 29A and other provisions of the Code or not. It is submitted that the Resolution Professional of its own cannot withhold any plan and refuse to submit the same before the CoC.
The NCLAT referred to the Apex Court’s judgment in the case of Arcelormittal India Private Limited vs. Satish Kumar Gupta and observed that “The ratio of the judgment of the Hon’ble Supreme Court as is culled out from paras 80 & 81 is that the Resolution Professional is not to take a decision regarding the ineligibility of the Resolution Applicant. It has only to form its opinion because it is the duty of the Resolution Professional to find out as to whether the Resolution Plan is in compliance of the provisions of the Code or not. The Resolution Professional can give his opinion with regard to each plan before the CoC and it is for the CoC to take a decision as to whether the plan is to be approved or not. In para 5 of the impugned order, we have noticed that the direction has been issued to the Resolution Professional to place all the Resolution Plans along with his opinion on the contravention or otherwise of the various provisions of law. The aforesaid direction clearly indicates that the Resolution Professional is free to submit his opinion with regard to contravention or otherwise of the various provisions of law. The aforesaid observations take care of the duties and responsibilities of the Resolution Professional. The Resolution Professional can give his opinion with regard to each Resolution Applicants and further steps are to be taken for the CoC as per the direction issued by the Adjudicating Authority.”