IBC Section 82: Appointment of resolution professional

Section 82 of Insolvency and Bankruptcy Code, 2016: Appointment of resolution professional

Official Bare Act Text

Override / Mandate Mens Rea (Intent) Actus Reus (Conduct) Punishment Limitation Monetary

(1) Where an application under section 80 is filed by the debtor through a resolution professional, the Adjudicating Authority shall direct the Board within seven days of the date of receipt of the application and shall seek confirmation from the Board that there are no disciplinary proceedings against the resolution professional who has submitted such application.

(2) The Board shall communicate to the Adjudicating Authority in writing either-

(a) confirmation of the appointment of the resolution professional who filed an application under sub-section (1); or

(b) rejection of the appointment of the resolution professional who filed an application under sub-section (1) and nominate a resolution professional suitable for the fresh start process.

(3) Where an application under section 80 is filed by the debtor himself and not through the resolution professional, the Adjudicating Authority shall direct the Board within seven days of the date of the receipt of an application to nominate a resolution professional for the fresh start process.

(4) The Board shall nominate a resolution 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 or nominated by the Board under sub-section (2) or sub-section (4), as the case may be.

(6) A resolution professional appointed by the Adjudicating Authority under sub-section (5) shall be provided a copy of the application for fresh start.

Legal Commentary & Landmark Judgments: Section 82

Section 82 governs the appointment of the Resolution Professional for conducting the Fresh Start Process, regulating appointments where an application is filed directly or through an IP.

Direct Filing vs Filing Through IP: Where an application is filed through an RP, the Adjudicating Authority directs the IBBI to confirm that no disciplinary proceedings are pending against him.
Direct Filing by Debtor: Where filed directly by the debtor, the Adjudicating Authority directs the IBBI to nominate an RP within seven days.
Tenure of RP: The appointed RP scrutinizes the application and oversees the fresh start process until discharge under Section 92.

Key Landmark Precedents:

Dilip B. Jiwrajka v. Union of India (2024) 5 SCC 436: The Supreme Court analyzed the role of the RP under Section 82/83, confirming that the RP functions as an independent facilitator and officer of the court to verify financial statements.
Lalit Kumar Jain v. Union of India (2021) 9 SCC 321: Affirmed that the nomination of RPs through the IBBI under Section 82 ensures professional neutrality and adherence to ethical standards.

Courtroom Practice & Strategic Litigation Guidance:

Debtors applying directly under Section 81 should request the DRT to nominate an RP from the IBBI panel under Section 82(2), avoiding private upfront professional costs.