TaxTMI 
TaxTMI 
TaxTMI 
2023 (4) TMI 1139
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.... its order dated 22.11.2019 and 06.01.2020 appointed this petitioner, as interim Resolution Professional (IRP) for both companies in terms of Section 7(3)(b) r/w Section 16 of I&B Code. 6. The petitioner was appointed as Resolution Professional by the Committee of Creditors. 7. The complainant is Amit Sarawgi, Director of M/s Adi Ispat (P) Limited and it is alleged that petitioner had demanded a bribe of Rs.2,00,000/- per month for showing leniency in the insolvency resolution process for extending CIRP process from 09 months to 02 years and also demanded Rs.20,00,000/- for obtaining favourable forensic audit/valuation report from his chosen Forensic Auditor/Valuer and for helping in re-possession of plant/company. The petitioner had offered him that SME, the complainant was entitled to participate in the auction proceeding of the Bank and if he met the demands, he would prepare his report leniently enabling him re-possess his plant/company. 8. The complaint was discreetly verified. Trap team was constituted and raid was conducted at Giridih at the Company office, where the petitioner was caught read handed on 11.2.2020 in the presence of independent witnesses accepting the ille....
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....d by the Committee of Creditors such period, not exceeding 30 days, to make payment of overdue amounts in accordance with the proviso to Section 29-A(c). A conspectus of all these provisions would show that the Resolution Professional is required to examine that the resolution plan submitted by various applicants is complete in all respects, before submitting it to the Committee of Creditors. The Resolution Professional is not required to take any decision, but merely to ensure that the resolution plans submitted are complete in all respects before they are placed before the Committee of Creditors, who may or may not approve it. 12. It is further argued that Section 232 of the I&B Code provides that the Chairperson, Members, officers and other employees of the Board shall be deemed, when acting or purporting to act in pursuance of any of the provisions of this Code, to be public servants within the meaning of Section 21 of the Indian Penal Code (45 of 1860). The list does not include Insolvency Professionals. Section 233 gives protection to resolution professional, insolvency professional from any criminal prosecution or other legal action for the act done in good faith. 13. It ....
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....ulture, industry, trade or banking, who receive financial aid from the Government [See Section 2(c)(ix)]. Office-bearers or employees of educational, scientific, social, cultural or other institutions in whatever manner established, receiving financial assistance from the Government or local or other public authorities are also included [see Section 2(c)(xii)]. The two Explanations to Section 2(c) are also revealing - whereas Explanation 1 states that in order to be a public servant, one need not be appointed by the Government, Explanation 2 refers to a de facto, as opposed to a de jure, public servant, discounting whatever legal defect there may be in his right to hold that "situation". In State of Gujarat v. Mansukhbhai Kanjibhai Shah, (2020) 20 SCC 360 the nature of duty exercised was regarded as the determinative factor to decide whether the person sought to be proceeded was a public servant or not. If he was held to be exercising public duty, he can be held to be a public servant. The emphasis was not on the mode of appointment or remuneration, but if he was exercising a public duty or not. On this test it was held that the trustee in the Board of "deemed university" came w....
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....se licensed surveyors would come within the ambit of Section 2(c) of the Prevention of Corruption Act and particularly clauses (i) and (viii) thereof, which defines "public servant" to mean: "2. (c)(i) any person in the service or pay of the Government or remunerated by the Government by fees or commission for the performance of any public duty; (viii) any person who holds an office by virtue of which he is authorised or required to perform any public duty;" 9. We would also like to refer to the definition of "public duty" as contained in Section 2(b) of the Prevention of Corruption Act, which reads as under: "2. (b) "public duty" means a duty in the discharge of which the State, the public or the community at large has an interest." The Hon'ble Supreme Court held that they were public servant as they were discharging public duty. 19. The petitioner was appointed as an interim resolution professional under Section 16 of the I & B Code, 2016 and later his appointment was confirmed by the committee of creditors under Section 22. 20. Under Section 16 (1) an interim resolution professional is appointed by the adjudicating authority on the insolvency commencement date. U....