TaxTMI 
TaxTMI 
2025 (8) TMI 1153
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.... of the complaint is that the petitioner is the former Managing Director of a company named M/s.S.L.O. Industries Limited. While so, upon a petition filed under Section 7 of the Insolvency and Bankruptcy Code, the National Company Law Tribunal, by order dated 14.11.2019, entrusted the management and affairs of the company to an Interim Resolution Professional. Thereafter, the company went into liquidation and was taken over by the liquidator appointed by the Tribunal on 21.01.2022. The liquidator, upon assuming charge, found that the accounts listed in the inventory at the time of taking over by the Resolution Professional and its stock position on the date of handing over documents and stock were vastly depleted, and an alarming figure of closing stock of about Rs. 840 crores could not be reconciled. After considering this, the National Company Law Tribunal also passed an order on 12.05.2023 stating that there is a difference of Rs. 625.25 crores in the inventory. Considering the nature of the allegations and the liquidator's report, this Court on 13.08.2021 directed the first respondent to conduct a preliminary inquiry and to consider the communication dated 19.01.2021, inclu....
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....y Board of India and its officials cannot be made as public servants, the legislation has consciously omitted to make Resolution Professionals as a public servants. Further, the Code also protects the actions of the Resolution Professional taken in good faith. It is in this context, the judgment of the Delhi High Court takes a correct view. 7. The learned Counsel, in order to highlight the role played by the Resolution Professional, would rely upon the judgment of the Hon'ble Supreme Court of India in Swiss Ribbons Private Ltd. Vs. Union of India [(2019) 4 SCC 17] which clarified that the role of the Resolution Professional is administrative and is distinct from a public function. He would further rely upon the judgment of the Hon'ble Supreme Court of India in Arcelor Mittal India Private Ltd. Vs. Satish Kumar Gupta and Ors. [(2019) 2 SCC 1] to contend that the entire process of the Insolvency and Bankruptcy Code is to serve private interests and absolutely, no public duty is involved in the exercise. The learned Counsel would then rely upon the judgment of the Hon'ble Supreme Court of India in Committee of Creditors of Essar Steel India Limited Vs. Satish Kumar Gupt....
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.... (c) "public servant" means- . . . (v) any person authorised by a court of justice to perform any duty, in connection with the administration of justice, including a liquidator, receiver or commissioner appointed by such court; (vi) any arbitrator or other person to whom any cause or matter has been referred for decision or report by a court of justice or by a competent public authority; . . (viii) any person who holds an office by virtue of which he is authorised or required to perform any public duty;" 11. On the face of it, it is very clear that the Resolution Professional is a person authorized by a Court of Justice to perform duties related to the administration of justice. The Delhi High Court, in paragraph No.55 of its judgment in Dr. Arun Mohan's case (stated supra), held as follows:- "55. Regarding sub-section (v), in the first blush, there appears to be some weightage in the arguments of learned SPP and learned Counsel for the respondent no.2/complainant urged since the IP as an Interim Resolution Professional and Liquidator, is appointed by the NCLT. However, on a closer scru....
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....he interim resolution professional are specified in Section 18. "18. Duties of interim resolution professional.- The interim resolution professional shall perform the following duties, namely- (a) collect all information relating to the assets, finances and operations of the corporate debtor for determining the financial position of the corporate debtor, including information relating to- (i) business operations for the previous two years; (ii) financial and operational payments for the previous two years; (iii) list of assets and liabilities as on the initiation date; and (iv) such other matters as may be specified; (b) receive and collate all the claims submitted by creditors to him, pursuant to the public announcement made under Sections 13 and 15; (c) constitute a committee of creditors; (d) monitor the assets of the corporate debtor and manage its operations until a resolution professional is appointed by the committee of creditors; (e) file information collected with the information utility, if necessary; and (f) take control and custody of any asset over which the corp....
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.... cheque issued by a debtor or a signed acknowledgment by the creditor of the receipt of the dues." 16. The fact that the Resolution Professional is empowered under subsection (4) of 99 to seek further information or an explanation from the debtor, creditor, or any other person who, in the opinion of the Resolution Professional, may provide relevant information is considered in paragraph No.52, and the same is extracted herein below. "52. We will deal with the impact of sub-section (3) of Section 99 subsequently. Evidently, the provisions of sub-section (3), operate on the resolution professional alone and cannot be construed to be a bar qua the adjudicatory function of the adjudicating authority under Section 100. The resolution professional is empowered by sub-section (4) of Section 99 to seek further information or an explanation in connection with the application from the debtor, creditor or any other person who in the opinion of the resolution professional may provide information. The information which the resolution professional is empowered to seek is in aid to his duty to examine the application and submit a report either recommending the approval or the rejectio....
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....islature considered it appropriate to interpose the resolution professional before the adjudicatory function of the adjudicating authority commences under Section 100. The resolution professional does not have the kind of power which their counterpart has in Part II. No provision has been made in Part III empowering the resolution professional to take over the assets or the business which is being carried on by the individual or the partnership. The role under Section 99 which is ascribed to the resolution professional is that of a facilitator and is to gather relevant information on the basis of the application which has been submitted under Section 94 or Section 95 and after carrying out the process which is referred to in sub-section (2), sub-section (4) and sub-section (6) of Section 99, to submit a report recommending the acceptance or rejection of the application. Significantly, the statute has used the expression "examine the application", "ascertain" and "satisfies the requirements" and "recommend" the acceptance or rejection of the application. The use of these expressions leaves no manner of doubt that the resolution professional is not intended to perform an adjudicatory....