TaxTMI 
TaxTMI 
2023 (12) TMI 858
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....enal Code, 1860 (in short "IPC") registered at P.S. CBI, ACB, New Delhi and presently pending before learned Special Judge (PC) Act, New Delhi and all proceedings emanating therefrom. The petitioner also seeks quashing of the impugned order dated 14.01.2020 passed by the learned Special Judge (PC) Act, CBI-13, New Delhi directing 2 months' judicial remand of the petitioner. HISTORY OF THE PRESENT PETITION:- 2. This Court had earlier vide Order dated 24.02.2020 issued notice on the present petition. Subsequently, upon an application bearing Crl.M.A. 4761/2020, filed by the petitioner for modification of order dated 24.02.2020, this Court vide Order dated 03.03.2020, had passed the following order:- "Crl. M. A. No.4761/2020 1. The learned counsel appearing for the petitioner has filed the present application, inter alia, pointing out that there is an inadvertent error that has crept in Paragraph no. 4 of the order dated 24.02.2020, inasmuch as, the petitioner was appointed as a Resolution Professional by the Committee of Creditors (CoC) and not an Interim Resolution Professional. Paragraph no. 4 of the said order dated 24.02.2020, is accordingly rectified to r....
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.... The petitioner received an intimation from Financial Creditor through e-mail along with a copy of the order dated 14.11.2019 passed by the NCLT, Mumbai Bench in C.P. No. 2891/1-BP/2019 in the matter titled Mr. Karan Lalwani v/s FR Tech Innovations Pvt. Ltd. whereby the petitioner was appointed as IRP. The appointment and tenure of the petitioner as IRP was in accordance with the provisions of Section 16 of IBC, 2016. The tenure of IRP was till the date of appointment of RP by the Committee of Creditors (in short "CoC"). 5.3 The petitioner as an IRP inter-alia issued public announcement and invited claims from the Claimants/Creditors along with the documentary evidence in support thereof. The petitioner received eight claims in total for an amount of Rs. 2,12,08,445/- from the claimants/creditors under various categories till 13.12.2019 being last date for submission of claims. 5.4 The petitioner in his capacity as IRP collated and verified the claims received by him from Creditors/Claimants under various categories including the claim of Mrs. Namrata Bugalia, wife of the complainant in the above said RC case. Mrs. Namrata Bugalia, wife of the complainant, alleged....
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....the supervision of the CoC. The petitioner was required to perform his duties in accordance with the provisions of Sections 25 and 28 of IBC, 2016. It was also mandated under Section 5(2)(b) of IBC, 2016 for the petitioner to represent and act on behalf of CD with third parties, and exercise rights for the benefit of the CD. 5.11 That during discussion on telephone on 30.12.2019, the petitioner conveyed the complainant that he had been appointed as RP by CoC in its first meeting held on 28.12.2019. The petitioner also informed the complainant that the CoC had decided to recover Rs. 15.20 Lacs from the wife of the complainant along with interest as she had received these amounts on the basis of forged and fabricated documents. 5.12 That the petitioner had scheduled a meeting in Hyderabad with Claimants/ Creditors based in Hyderabad who had unlawfully and illegally retained the assets and business records of the CD. On 07.01.2020, pursuant to the authority of the CoC, the petitioner issued/sent Demand Notices through e-mail and also through post to all the Claimants/Creditors including to the wife of the complainant. 5.13 That instead of responding to the D....
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.... 5.18 That on 25.01.2020, the petitioner was released on bail by the learned Special Judge, New Delhi. Thus, the present petition arises from the registration of impugned FIR in question against the petitioner consequent upon which the impugned remand order has been passed. CONTENTIONS OF THE PETITIONER 6. Mr. Arshdeep Singh Khurana, learned counsel appearing on behalf of petitioner contends that the basic premise on which the alleged prosecution is raised against the petitioner, is without any legal basis and legs to stand on and is, therefore, liable to be quashed outright. Learned counsel further submits that the petitioner also suffers from the observations made against the petitioner by learned Special Judge, passed in the impugned order without any legal basis and wholly based upon the surmises and conjectures of the learned Special Judge while interpreting the provisions of the IBC alongwith PC Act. 7. The petitioner is enrolled as an Insolvency Professional (in short "IP") under Section 207 of IBC, 2016 with an Insolvency Professional Agency (ICSI Institute of Insolvency Professionals) as its member and registered under Regulation 7 of the Insolvency and Bankru....
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..... d. While relying upon ArcelorMittal India Pvt. Ltd. v. Satish Kumar Gupta and Ors. reported in (2019) 2 SCC 1 ; Swiss Ribbons Pvt. Ltd. v. Union of India reported in (2019) 4 SCC 17, learned counsel submits that IRP/RP does not render any adjudication or determination over any point and only act as an Administrator or Facilitator to sub-serve the interests of the CoC. 9.4 Mr. Khurana further explains the interplay between the provisions of PC Act and IBC and submits that PC Act, 1988 provides an exclusive definition of public servant under Section 2(c). As criminal statutes must be read strictly and all ambiguities must be resolved in favour of the accused, there is no possibility of the inclusion of any person not listed under Section 2(c) being included as a public servant. 9.5 Section 2 of the PC Act does not include the terms 'Insolvency Professional', 'Interim Resolution Professional' or 'Resolution Professional'. This is despite the fact that Parliament chose to amend certain provisions of PC Act in 2018, 2 years after the introduction of the IBC in 2016. 9.6 Notably, the Fourth definition of public servant under Section 21 of IPC is nearly identical to Se....
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....tains a legal fiction under Section 232 of IBC deeming certain persons as "Public Servants". However, an IRP or an RP is not deemed to be a public servant under the said section. Taking this argument further, learned counsel submits that the Parliament considered the question of corruption in the context of the IBC, leading to the introduction of Section 232 IBC. Notably, the IRP or RP is not included in Section 232 IBC. However, in the very next section i.e. Section 233 IBC, the actions taken in good faith by an IRP or an RP are protected. 9.9 Learned counsel further contends that it is settled law that what is expressly mentioned in one place but not in another must be taken to have been deliberately omitted. He submits that this is in line with the settled rule of statutory interpretation, viz. "expressio unius est exclusio alterius" and thus, by resorting to Section 232, it is clear that Parliament did not consider any person under the IBC as a public servant but has created a legal fiction that persons under Section 232 would be public servants, which fiction does not include an RP or an IRP, while relying upon the judgement of Manish Tiwari v. State of Rajasthan reported i....
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....nant, and imminent and patently erroneous investigation carried out by the Respondent/CBI. 11. To substantiate his aforesaid contention, Mr. Khurana, raises the following arguments:- a) There is no material to suggest that any demand for a bribe was made by the Petitioner apart from the bald assertion of the Complainant and it is evident that this FIR has been filed by the Complainant simply to avoid the consequences of defrauding the Corporate Debtor, especially the complaint that the Petitioner was authorised to file vide the meeting dated 28.11.2020, and legal notice pertaining to the same was sent to the complainant via e-mail dated 07.01.2020, subsequent to which the present complaint has been filed with the Respondent/CBI. b) The CBI also failed to appropriately verify the claim of the Complainant despite an explicit mandate to conduct a complete verification in line with Chapter 8 of the CBI Manual. The verification which was conducted on 10.01.2020, failed to disclose the role of the Petitioner. The CBI has also failed to consider that the Petitioner had placed all the information relevant to the Complainant's case to the Committee of Creditors. The....
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....e this Court is a pure question of law. 16. Mr. Verma starts his arguments by drawing distinction from the complete sketch of the IRP presented by the Mr. Khurana, learned counsel for the petitioner, to the extent of pointing that the duties of an IRP as enshrined under the IBC, are necessarily to be read as "Public Duties" of an encompassing "Public Character", in consonance with the definition of "Public Servant" as provided under the PC Act. 17. Mr. Verma, learned SPP submits that the IBC is a new law and a new concept duly enacted for the issues regarding insolvency and bankruptcy of the corporate persons. He further submits that the PC was amended and Section 2(c) of the PC Act has a very wide amplitude, encompassing the duties performed by the individuals to be termed as a "Public Servant", though had not specifically provided the word IRP/RP in its definition. 18. Mr. Verma further contends that the IRP/RP is a person who is duly appointed by the NCLT, even if same is proposed by the creditor/corporate debtor/applicant, and by the plain reading of the duties which the IRP/RP are required to perform, it clearly shows that the same are "Public Duty" having a "Public C....
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.... 24. Mr. Ram Niwas Buri, learned counsel for the R-2/Complainant, entered appearance and sought permission to argue the matter which was duly granted and in pursuance thereof, had filed written submissions on behalf of the R-2/Complainant, raising strong objections to the present petition, legally and factually. 25. Mr. Buri, learned counsel for the complainant starts his contentions by taking this Court again through the relevant provisions of IBC alongwith the regulations framed thereunder, governing the entire realm of the IRP/RPs. The summation of his legal arguments are as follows:- a) In view of judicially attributed meaning, the word "office" is wide enough to cover each and every capacity or position held by a person in discharge of public duties entrusted in trust and good faith under statutory provisions. Learned counsel argues that Petitioner in the capacity or position as IRP or RP is discharging statutory duties under IBC, 2016 and IBC Regulations, 2016, of public character in public interest, as such, he was holding a public office of IRP or RP in the public interest on the day of crime i.e., 11.01.2020. b) Learned counsel further argues that in ....
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....ties in aid and assistance to the NCLT, under adjudicating control of the NCLT. RP is mandated to comply and follow the provisions of IBC, 2016, IBBI Regulations, 2016, Guidelines issued by IBBI and any other order or circular issued by IBBI from time to time. Therefore, duties, functions, actions, steps and decisions of RP during CIRP are regulated and controlled under the provisions of IBC, 2016 and IBC Regulations, 2016, as such, the same are public in nature. g) Any act or commission done or intended to be done by an Insolvency Professional or Liquidator which is not covered under the IBC, 2016 or rules or regulations made thereunder tantamount to, by its nature, a crime punishable under PC Act or IPC, as an IRP or RP or Liquidator or Bankruptcy Trustee is not protected u/s 233, IBC, 2016. h) So far as an Insolvency Professional or Liquidator not referred in Section 232, IBC, 2016 is concerned, it appears to be an unintended omission of the legislature but the implication by nature of duties, responsibilities, accountability and office of an Insolvency Professional (IRP or RP) or Liquidator under IBC, 2016, ex-facie shows and proves that an Insolvency Professi....
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....t and entire work/services of R-2 and his wife as fraudulent and threatened to initiate criminal proceedings against R-2's wife. e) Petitioner in connivance with co-accused Paresh Kumar hatched conspiracy to extort money from R-2 and demanded a sum of Rs. 5 lakhs to hush up the case. Petitioner and co-accused Paresh Kumar in joint meeting with R-2 in the office of Paresh Kumar, demanded sum of Rs. 5 lakhs expressly and explicitly under threat, duress and coercion of criminal action against R-2's wife and recovery of Rs. 15.20 lakhs with interest, in case the bribe of Rs. 5 lakhs is not paid. Petitioner and co-accused Paresh Kumar assured R-2 that on payment of Rs. 5 lakhs, no criminal action shall be initiated against R-2's wife as the Petitioner would continue to manage entire case till the end. This entire conversation of all the three as well as conversations between Petitioner and co-accused is part of the prosecution case. f) Co-accused Paresh Kumar was caught red handed while accepting bribe of Rs. 3.5 lakhs from the R-2/complainant. 27. On the basis of above submissions, Mr. Buri, learned counsel for the R-2/Complainant lastly contends that, ....
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....of his contentions he also relied upon the judgement of the Hon'ble Supreme Court in Central Bureau of Investigation vs. Ramesh Gelli and Ors., reported in (2016) 3 SCC 788. 32. He submits that the reasoning rendered in Para 27 of Sanjay Kumar Aggarwal (supra) by the learned Single Judge of the High Court of Jharkhand at Ranchi, that Section 232 is only in respect of IPC and not PC Act and therefore, an IP would fall within the ambit of the scope of section 2 (c) of the PC Act, cannot be considered as the correct interpretation of law keeping in view the ratio in Ramesh Gelli (supra). SUBMISSIONS OF IBBI 33. Mr. Neeraj Malhotra, learned senior counsel appears on behalf of IBBI and submits that the Board initially had some reservations against the contentions raised on behalf of the petitioner. However, since the passing of the judgement in Sanjay Kumar Aggarwal's case (supra) in the interregnum, enunciating the legal position on the identical legal issue before this Court, now submits that the Board will abide by the law as it stands today. ANALYSIS AND CONCLUSIONS: 34. This Court has heard the argument of Mr. Khurana, learned counsel for the petitioner, Mr. Prasanta....
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.... be resorted to ordinarily. 37. Before this Court delves into the aspect of whether the IP is a "public servant" within the meaning ascribed in Section 2(c) of the PC Act, 1988, it would be appropriate to consider as to for what reason and the aims and objects necessitating the consolidation of various Insolvency Acts like the Presidency Towns Insolvency Act, 1909, the Provincial Insolvency Act, 1920, the Sick Industrial Companies (Special Provisions) Act, 1985 (SICA), the Recovery of Debt Due to Banks and Financial Institutions Act, 1993 and the Securitization and Reconstructions of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act), into the Insolvency and Bankruptcy Code, 2016 was felt by the Legislature. The introduction as well as the statements of objects and reasons requiring codification of the aforesaid laws stated in the IBC 2016 is extracted hereunder :- "The existing framework for insolvency and bankruptcy resolution is inadequate, ineffective and results in undue delays. There have been several committees and commissions recommending consolidation of insolvency and bankruptcy laws. In November, 2015, the Bankruptcy Law R....
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....stablish an Insolvency and Bankruptcy Fund, and matters connected therewith or incidental thereto. An effective legal framework for timely resolution of insolvency and bankruptcy would support development of credit markets and encourage entrepreneurship. It would also improve Ease of Doing Business, and facilitate more investments leading to higher economic growth and development. 3. The Code seeks to provide for designating the NCLT and DRI as the Adjudicating Authorities for corporate persons and firms and individuals, respectively, for resolution of insolvency, liquidation and bankruptcy. The Code separates commercial aspects of insolvency and bankruptcy proceedings from judicial aspects. The Code also seeks to provide for establishment of the Insolvency and Bankruptcy Board of India (Board) for regulation of insolvency professionals, insolvency professional agencies and information utilities. Till the Board is established, the Central Government shall exercise all powers of the Board or designate any financial sector regulator to exercise the powers and functions of the Board. Insolvency professionals will assist in completion of insolvency resolution, liquidation and ....
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....roles, responsibilities and duties which would aid and assist the NCLT to either revive a Corporate Debtor by approving a resolution plan or to liquidate it as a last resort. Sections 18, 20 and 25 of the IBC refer to the various duties and functions of the IP which would extend to preserving the CD by stepping into the shoes of the management, appointing agencies if so required for the purposes of proper management of the CD, and managing its affairs. Sections 20 and 25 confer authority to the IP to enter into contracts on behalf of the CD or amend or modify the pending contracts; raise interim finance subject to Section 28 of the Code; issue appropriate instruction as may be necessary to keep the CD as a "going concern" apart from appointing accountants, legal or other professionals as may be necessary. It is also a responsibility of the IP under the IBC to preserve and protect the assets of the CD including the continued business operations of the CD. What is relevant to be also considered at this point is that the IBC has amended Section 429 (1) of the Companies Act, 2013 empowering the NCLT to pass instructions to executory authorities for taking control and custody of assets,....
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...., may submit the claim with proof to the interim resolution professional or the resolution professional, as the case may be, on or before the ninetieth day of the insolvency commencement date. (3) Where the creditor in sub-regulation (2) is a financial creditor under Regulation 8, it shall be included in the committee from the date of admission of such claim: Provided that such inclusion shall not affect the validity of any decision taken by the committee prior to such inclusion. 13. Verification of claims.-(I) The interim resolution professional or the resolution professional, as the case may be, shall verity every claim, as on the insolvency commencement date, within seven days from the last date of the receipt of the claims, and thereupon maintain a list of creditors containing names of creditors along with the amount claimed by them, the amount of their claims admitted and the security interest, if any, in respect of such claims, and update it. (2) The list of creditors shall be- (a) available for inspection by the persons who submitted proofs of claim; (b) available for inspection by members, partners. Directors and guarant....
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....ofessional, are set out hereinbelow: "41. Determination of valuation of claims.-The liquidator shall determine the value of claims admitted under Section 40 in such manner as may be specified by the Board. 42. Appeal against the decision of liquidator.-A creditor may appeal to the adjudicating authority against the decision of the liquidator accepting or rejecting the claims within fourteen days of the receipt of such decision." It is clear from these sections that when the liquidator "determines" the value of claims admitted under Section 40, such determination is a "decision", which is quasi-judicial in nature, and which can be appealed against to the adjudicating authority under Section 42 of the Code. 91. Unlike the liquidator, the resolution professional cannot act in a number of matters without the approval of the Committee of Creditors under Section 28 of the Code, which can, by a two-thirds majority, replace one resolution professional with another, in case they are unhappy with his performance. Thus, the resolution professional is really a facilitator of the resolution process, whose administrative functions are overseen by the Committee....
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....ion applicant has no vested right that his resolution plan be considered, it is clear that no challenge can be preferred to the adjudicating authority at this stage. A writ petition under Article 226 tiled before a High Court would also be turned down on the ground that no right, much less a fundamental right, is affected at this stage. This is also made clear by the first proviso to Section 30(4), whereby a Resolution Professional may only invite fresh resolution plans if no other resolution plan has passed muster. 80. However, it must not be forgotten that a Resolution Professional is only to "examine" and "confirm" that each resolution plan conforms to what is provided by Section 30(2). Under Section 25(2)(i), the Resolution Professional shall undertake to present all resolution plans at the meetings of the Committee of Creditors. This is followed by Section 30(3), which states that the Resolution Professional shall present to the Committee of Creditors, for its approval, such resolution plans which confirm the conditions referred to in sub-section (2). This provision has to be read in conjunction with Section 25(2)(/), and with the second proviso to Section 30(4), whic....
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....h Gelli and Ors. reported in (2016) 3 SCC 788, wherein Ranjan Gogoi, J. (as His Lordship then was) had in para 36 held as under :- "36. While there can be no manner of doubt that in the Objects and Reasons stated for enactment of the Prevention of Corruption Act, 1988 it has been made more than clear that the Act, inter alia, envisages widening of the scope of the definition of "public servant", nevertheless, the mere performance of public duties by the holder of any office cannot bring the incumbent within the meaning of the expression "public servant" as contained in Section 2(c) of the PC Act. The broad definition of "public duty" contained in Section 2(b) would be capable of encompassing any duty attached to any office inasmuch as in the contemporary scenario there is hardly any office whose duties cannot, in the last resort, be traced to having a bearing on public interest or the interest of the community at large. Such a wide understanding of the definition of "public servant" may have the effect of obliterating all distinctions between the holder of a private office or a public office which, in my considered view, ought to be maintained. Therefore, according to me, ....
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.... codified to formulate the IBC. This was necessitated as the legislature found that the existing framework for Insolvency and Bankruptcy was inadequate and would often result in inordinate delays in resolution or redressal of such disputes. The objective of the IBC was to consolidate or re-organize all such laws including to amend, if required, for the purposes enumerated in it. As such, it is clear that while codifying the IBC, the legislature had before it, the aforesaid Acts and all the relevant material to facilitate such codification. 44. In fact, before such codification, the Government of India had constituted the Bankruptcy Law Reforms Committee, 2015 to study the entire gamut of the insolvency and the bankruptcy laws and make appropriate recommendations. The said recommendations were accepted and codified and promulgated as IBC, 2016. EFFECT OF SECTION 232 AND 233 IBC: 45. With the aforesaid historical, legal and factual background, this Court would now examine the effect of Section 232 read with Section 233 on the present case. A plain reading of Section 232 brings to fore that the Chairperson, Members, Officers and other employees of the Board (IBBI) were deemed....
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....ssion is deliberate since that would tantamount to legislating and supplying 'casus omissus' which is prohibited and not within the jurisdiction of the Courts. 47. At this juncture, it would be relevant to consider the report of the Joint Committee on the IBC, 2015 presented before the 16th Lok Sabha. The relevant portion in respect of trial of offences by the Special Court, pre and post deliberation is as under :- "64. Trial of offences by the Special Court - Clause 240 (renumbered as clause 233c) Clause 240 provides as under - "Notwithstanding anything in the Code of Criminal Procedure, 1973, offences under Part II and offences by any insolvency professional under Part III of this Code shall be tried by the Special Court established under Chapter XXXVIII of the Companies Act, 2013." The Committee decide that words "Part II and offences by any insolvency professional under Part III of" as appearing in Clause 240 (1) may be deleted." The aforesaid provision has been retained as Section 236 of the IBC, 2016 without the deleted portion. The same is reproduced hereunder: "236. Trial of offences by Special Court.- (1) Notwithstanding a....
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....e aid of filling up a gap would arise only and only in a case of clear necessity and when the reason for it is found in the four corners of the statute itself. The aforesaid provisions and the analysis do not find favour of the clear necessity so far as the present case is concerned. The Hon'ble Supreme Court in Sangeeta Singh vs. Union of India and Ors. reported in (2005) 7 SCC 484 held as under : "6. Words and phrases are symbols that stimulate mental references to referents. The object of interpreting a statute is to ascertain the intention of the legislature enacting it. (See Institute of Chartered Accountants of India v. Price Waterhouse). The intention of the legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said. As a consequence, a construction which requires for its support, addition or substitution of words or which results in rejection of words as meaningless has to be avoided. As observed in Crawford v. Spooner the courts cannot aid the legislature's defective phrasing of an Act, they cannot add or mend, and by construction make up deficiencies which a....
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....ed: (All ER p. 664 I) "This is not a new problem, though our standard of drafting is such that it rarely emerges."]" (emphasis supplied by this Court) The learned Division Bench of this Court in Indira Uppal vs. Union of India and Anr. reported in (2022) 292 DLT 659 (DB) quoted with approval the judgment of the Hon'ble Supreme Court in Babita Lila vs. Union Of India reported in (2016) 9 SCC 647 in para 12 of its judgment extracted Babita Lila (supra) as under :- "12. The general approach of the Courts is to ensure that they do not stray into usurping the legislative function. A specific instance of this approach is the rule that a casus omissus is not to be created or supplied, so that a statute may not be extended to meet a case for which provision has clearly and undoubtedly not been made. The Supreme Court in Babita Lila v. Union of India, (2016) 9 SCC 647 has held as under:- "63. It is a trite law that there is no presumption that a casus omissus exists and a court should avoid creating a casus omissus where there is none. It is a fundamental rule of interpretation that courts would not fill the gaps in statute, their functions being jus discre non....
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....ourt in situations where omissions otherwise noticed in a statute or in a provision thereof had been a conscious legislative intendment." (emphasis supplied by this Court) 50. On the question of interpretation of statutes, the Hon'ble Supreme Court in Commissioner of Sales Tax, UP., Lucknow vs. Parson Tools and Plants, Kanpur reported in (1975) 4 SCC 22 held as under :- "15. Be that as it may, from the scheme and language of Section 10, the intention of the legislature to exclude the unrestricted application of the principles of Sections 5 and 10 of the Limitation Act is manifestly clear. These provisions of the Limitation Act which the legislature did not, after due application of mind, incorporate in the Sales Tax Act, cannot be imported into it by analogy. An enactment being the will of the legislature, the paramount rule of interpretation, which overrides all others, is that a statute is to be expounded "according to the intent of them that made it". "The will of the legislature is the supreme law of the land and demands perfect obedience". "Judicial power is never exercised", said Marshall, C.J. of the United States, "for the purpose of giving effect to the will....
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....it repugnant to the aims and objects of the IBC. APPLICABILITY OR OTHERWISE OF SECTION 2 (c) PC ACT, 1988: 51. For consideration of the arguments made on behalf of the learned counsel for the Petitioner on non-applicability of Section 2 of the PC Act, and its vehement counter arguments on behalf of the learned counsel for the respondents, it would be relevant to consider Section 2 of the PC Act, which is as under:- "2. Definitions.-In this Act, unless the context otherwise requires,- (c) "public servant" means- (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; (ii) any person in the service or pay of a local authority; (iii) any person in the service or pay of a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956); (iv) any Judge, including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adju....
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....o gratifications estimable in money; (b) the expression "legal remuneration" is not restricted to remuneration paid to a public servant, but includes all remuneration which he is permitted by the Government or the organisation, which he serves, to receive.] Explanation 1.-Persons falling under any of the above sub-clauses are public servants, whether appointed by the Government or not. Explanation 2.-Wherever the words "public servant" occur, they shall be understood of every person who is in actual possession of the situation of a public servant, whatever legal defect there may be in his right to hold that situation." 52. A perusal of the provisions of Section 2 quoted above indicates that the role ascribed to the IP under IBC purportedly could fall within the ambit of one of the sub-sections like (v), (vi) or (viii). So far as subsection (v) is concerned, it is clear from a plain reading that an individual ought to have been authorized by a Court of justice to perform any duty connected with administration of justice, including liquidator, receiver or commissioner appointed by such court. 53. So far as sub-section (vi) is concerned, it is clear fr....
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....nal to take over the management, take control of the assets and properties, do acts necessary to keep such assets from withering away or being wasted, keep the CD as a "going concern" and constitute the CoC under Section 21 IBC. Once the CoC is constituted, it nominates and appoints the Resolution Professional and the role of IRP is over. It is also pertinent to note that the IRP and RP may or may not be the same individual. It is dependent upon the sole discretion of the CoC either to continue with the same IRP or nominate and appoint a new individual as RP. The said RP is chosen and nominated by passing of 66% votes by the duly constituted CoC. The NCLT, upon an application of the CoC requesting the appointment of RP, endorses the same and passes an appropriate order thereon. It is the RP who takes the CD through the CIRP till either it is resurrected/revived by acceptance of a Resolution Plan or is ultimately liquidated. Both the decisions are taken by the CoC by votes and the RP has no role to play in such decisions. In case the CD is sent up for liquidation, the NCLT would next appoint the liquidator who shall take all necessary steps in accordance with IBC to liquidate the CD....