JUDGMENT :

SUDHANSU JYOTI MUKHOPADHAYA, J.

This appeal has been preferred by Mr. Devendra Padamchand Jain, the then Resolution Professional of VNR Infrastructures Limited (Corporate Debtor) against the order dated 24th August, 2017 whereby and where under the Adjudicating Authority (National Company Law Tribunal) Hyderabad Bench, Hyderabad passed order under Section 33 (1) and 34(1) of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as the ‘I & B Code’) removed the appellant and appointed one Mr. T.S.N. Raja, as liquidator with the following observations:

“30. As per Regulation 13 of the liquidator shall submit a preliminary report to the Adjudicating Authority within 75 days from the liquidation commencement date providing various details/information as mentioned in the said regulation.

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(e) The Bench is also of the prima facie view that the existing RP has not assisted the Adjudicating Authority to the satisfaction during various hearings held.

(f) Though 180 days expires on 09-08-2017 to complete the CIRP process, the RP scheduled a last meeting on 07-08-2017. However, in view of the advice of the Bench the last CoC meeting was preponed and held on 25-07-2017 and the current C.A. was filed only on 01-08-2017 praying for liquidation of the corporate debtor.

(g) However, till the appointment of the Liquidator by the Adjudicating Authority, the existing RP will continue till the replacement by the newly appointed liquidator and directed orally, the RP during the hearings held on 04-08-2017 and 11-08-2017 and on 14-08-2017 to maintain status quo.

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(i) However, in view of our observations made supra the Adjudicating Authority would like to appoint the liquidator after obtaining the name of the liquidator from the Board / Insolvency and Bankruptcy Board of India (IBBI) for replacing the existing resolution professional.”

2. The main plea taken by the appellant is that the impugned order passed by the Adjudicating Authority replacing the appellant as resolution professional to liquidator and not appointing him as liquidator is beyond its jurisdiction.

3. The learned counsel appearing on behalf of the appellant submitted that as per sub-section (1) of Section 34 the Adjudicating Authority while passing the order for liquidation of the corporate debtor under Section 33 is required to appoint the resolution professional as the liquidator for the purpose of resolution process under Chapter II. The Adjudicating Authority can only replace the resolution processional, for the reasons mentioned in sub-section (4) of Section 34.

4. It was submitted that resolution plan was not rejected for failure to meet any requirement and in fact the draft resolution was not approved. Therefore, the stage of sub-section (2) of Section 30 never reached.

5. Learned counsel appearing on behalf of the Insolvency and Bankruptcy Board of India (hereinafter referred to as the ‘IBBI’) submitted that the question raised being a question of law can only be decided by the Tribunal. However, according to her, IBBI is not empowered to propose any name of the Liquidator. The IBBI has already uploaded the list of registered resolution professionals on its website from where the Committee of Creditors can choose the resolution professional following the required procedure and after informing the Adjudicating Authority, whose decision is final.

6. It was informed that IBBI received the copy of the impugned order along with letter dated 29th August, 2017 sent by the Tribunal and by reply dated 12th September, 2017, the IBBI informed that it was not empowered to propose the name of any person as a liquidator.

7. Learned counsel appearing on behalf of the IBBI submitted that I & B Code being market driven mechanism only the participants can identify their professionals and insolvency resolution professional can be replaced whenever as the creditors or Committee of Creditors or Adjudicating Authority or the regulator (IBBI) notices any problem w