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TMI Blog2023 (12) TMI 858X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 read as under: "4. The petitioner is a Resolution Professional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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, allegedly submitted the forged and fabricated documents in support of her claim including a copy of the unstamped acknowledgement and inventions agreem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... )(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 Demand Notice dated 07.01.2020 and to pre-empt any legal action against his wife, the complainant filed a false and fabricated complaint against the petitioner with SP, CBI, Delhi under PC Act. The complainan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gned 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 Bankruptcy Board of India (Insolvency Professionals) Regulations, 2016 and IBBI has granted certificate of registration under IP Regulations, 2016. 8. The arguments raised by the Mr. Khurana, learned counsel for the petitioner were primarily, two folds:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 Section 2(c)(v) of PC Act and the Sixth definition under Section 21 of IPC is identical to Section 2(c)(vi) of PC Act. Therefore, if an IRP is not a public servant within the meaning of Section 21 (Fourth and Sixth), an IRP cannot therefore be a public servant under Section 2(c)(v) and Section 2(c)(vi) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 in (2014) 14 SCC 420. 9.10 According to Mr. Khurana, it is trite that the IBC is a subsequent and a special legislation when it comes to the IP and the responsibilities and the duties ascribed to such individual and would override the provisions of PC Act, which is a general act, by relying upon the judgement of Jeevan Kumar Rout v. Central Bureau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 CBI has failed to consider that the conduct of the Complainant smacks of mala fides insofar as the Complainant has submitted fake invoices and fake service agreements to the Petitioner. The Complainant failed to bring to the notice of the CBI, the demand notice dated 07.01.2020 sent by the Petitioner. c) The Respondent/CBI admits that a further verification into the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efinition 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 Character". Learned SPP further took this argument basing upon the Section 15 of IBC, which refers to "Public Announcement" being made by an IRP duly appointed for a corporate debtor, for giving a notice to the public at large, of the status of the corporate debtor, and inviting claims of the creditors in public at large against the corporate debtor, in pursuance of the Corporate Insolvency Res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 view of the above meaning and definition of "office", "public duty" and "public servant" under PC Act, 1988 and judicial interpretation thereof, it is manifestly clear that the IRP or RP under IBC, 2016 falls under the ambit of public servant by virtue of holding an office of IRP or RP in order to discharge public duties entrusted in trust and good faith under statutory provisions of IBC, 2016 and IBC Regulations, 2016. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic 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 Professional (IRP or RP) or Liquidator under IBC, 2016 is a public servant. i) Learned counsel submits that this Hon'ble Court is empowered to fill the gap in section 232, IBC, 2016 by deeming fiction; firstly, in view of protection granted to an Insolvency Professional (IRP or RP) or Liquidator under section 233, IBC, 2016; secondly, in the light of the fact that there is no specific statutory provision in the PC Act, 1988 or IBC, 2016 which prescribe that an Insol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;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, co-accused Paresh Kumar accepted the bribe amount at the instance of the petitioner. Mr. Buri further submits that the acts and commissions of taking undue advantage of his office while discharging public duty as an IRP/ RP and extorting money under duress, coercion and threat of initiating criminal proceedings are ex-facie acts and commissions outside the purview of IBC, 2016 and exclusively falls in the ambit of PC Act, 1988 and IPC. REBUTTAL ON BEHALF OF PETITIONER 28. Mr. Khurana in rebuttal submits that "Inso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Varma, learned SPP for the CBI and Mr. Ram Niwas Buri, learned counsel for R-2/ complainant as well as Mr. Neeraj Malhotra, learned Senior Counsel for the IBBI. With their able assistance, this Court has also perused the documents on record as also the various provisions of different enactments which arose for consideration in the present petition. 35. Vide order dated 12.02.2021, this Court had formulated the question, which needed to be considered which is as under :- "The issue involved in the present petition is whether the petitioner who is a ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Reforms committee recommended the Insolvency and Bankruptcy Code. It was introduced in the Parliament in December, 2015. The objective of the Code is to consolidate and amend the laws relating to insolvency and bankruptcy. The Code repeals two insolvency Acts of 1909 and 1920 and amends several Acts. The Code aims at promoting investments as well as resolution of insolvency of corporate persons, firms and individuals in a time bound manner. It provides for designating the NCLT and DRT as the Adjudicating Authorities. The Code separates commercial aspects of insolvency and bankruptcy proceedings fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncy 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 bankruptcy proceedings envisaged in the Code. Information Utilities would collect, collate, authenticate and disseminate financial information to facilitate such proceedings. The Code also proposes to establish a fund to be called the Insolvency and Bankruptcy Fund of India for the purposes specified in the Code. 4. The Code seeks to provide for amendments in the Indian Partnership Act, 1932, the Central Excise Act, 1944, Customs Act, 1962, Income-Tax Act, 1961, the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, the Finance Act, 1994, the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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, in case the IP is facing difficulties in doing so. Section 28 is a relevant provision which restricts, prohibits and curtails certain rights and duties of the IP as enumerated above, subject to the approval of the Committee of Creditors (CoC). 39. Section 21 of the IBC mandates formation of CoC by the IP, which decides on the ultimate fate of the CD viz., whether to resolve the insolvency or to liquidate the CD. According to Section 23, the IP shall conduct the Corporate Insolvency Resolution Process during the interregnum till a final decision is reached insofar as the fate of the CD is concerned. ISSUE REGARDING "PUBLIC DUTY", "PUBLIC CHARACTER" AND "PUBLIC SERVANT". 40. Much was ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereupon 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 guarantors of the corporate debtor; (c) displayed on the website, il any, of the corporate debtor; (d) filed with the adjudicating authority; and (e) presented at the first meeting of the committee. 14. Determination of amount of claim.-(1) Where the amount claimed by a creditor is not precise due to any contingency or other reason, the interim resolution professional or the resolution professional, as the case may be, shall make the best estimate of the amount of the claim based on the information available with him. (2) The interim resolution professional or the resolution professional, as the case may be, shall revise the amounts of claims admitted, including the estimates of claims made under sub-regulation (1), as soon as may be practicable, when he comes across additional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 of Creditors and by the adjudicating authority. (emphasis supplied by this Court) (2) Arcelor Mittal :- 78. What has now to be determined is whether any challenge can be made various stages of the corporate insolvency resolution process. Suppose a resolution plan is turned down at the threshold by a Resolution Professional under Section 30(2). At this stage is it open to the resolution applicant concerned to challenge the Resolution Professional's rejection? It is settled law that a statute is designed to be workable, and the interpretation thereof should be designed to make it so workable. In CIT v. S. Teja Singh, this Court said: (SCR p. 403 : AIR pp. 355-56, para 9) "9. We must now refer to an aspect of the question, which strongly reinforces the conclusion stated above. On the construction contended for by the respondent. Section 18A(9)(6) would become wholly n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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), which provides that where a resolution applicant is found to be ineligible under Section 29-A(c), the resolution applicant shall be allowed 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. The fact that the Resolution Professional is also to confirm that a resolution plan does not contravene any of the provisions of law for the time being in force, includi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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, it would be more reasonable to understand the expression "public servant" by reference to the office and the duties performed in connection therewith to be of a public character." Thus, it is not necessary that all duties which are broadly defined as "public duty" would encompass within itself "public character". Merely because the IP is vested with certain roles, responsibilities and duties which could partake the nature of "public duties", it is not a necessary conclusion or a definite inference that the same are being discharged in the nature of "public character". In the present case, having regard to the law laid down by the Hon'ble Supreme Court in Swiss Ribbons (supra) and ArcelorMittal (supra) defining the role of the RP as a mere "facilitator", it appear to this Court that even if the roles and duties ascribed to the IP may be bordering or falling within "public duties", the same would still not assume "public character". With th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, when acting or purporting to act in pursuance of any of the provisions of the IBC, to be public servants within the meaning of Section 21 of the IPC, 1860. Applying the golden rule of interpretation, it is apparent that the IP has been deliberately omitted from the provisions of Section 232. This is so because, the IBC does not define who a public servant is and, therefore, the only persons considered/ deemed to be public servants are those who have specifically been named so in Section 232. It is also relevant to note that Section 233 provides protection of action taken in good faith, in that, no suit, prosecution or other legal proceeding would lie against the Government or any other officer of the Government, or the Chairperson, member, officer or other employee of the Board or "an insolvency professional or liquidator" for anything done or intended to be done in good faith under the IBC. It is clear that the protection has been conferred upon th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said 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 anything in the Code of Criminal Procedure, 1973 (2 of 1974), offences under this Code shall be tried by the Special Court established under Chapter XXVIII of the Companies Act, 2013 (18 of 2013). (2) xxxx (3) xxxx (4) xxxx" This would amply fortify the view taken by this Court that the legislature is deemed to have taken into consideration all the relevant Acts and materials before codifying IBC and that the omission was deliberate. Thus, as a consequence, it is manifest, that the IP was not included within the ambit of Section 232 of IBC. As a necessary corollary, it can be safely inferred that the IP, according to the provisions of IBC as it stands today, was not considered to be a "public servant" by the legislature. 48. Another relevant aspect considered by this Court while examining the present legal issue is the promulgation of Securities and Exchange Board of India (Appointment of Administrator and Procedure for Refunding to the Investors) Regulations, in the year 2018, whereb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 are left there. (See State of Gujarat v. Dilipbhai Nathjibhai Patel.) It is contrary to all rules of construction to read words into an Act unless it is absolutely necessary to do so. [See Stock v. Frank Jones (Tipton) Ltd.] Rules of interpretation do not permit the courts to do so, unless the provision as it stands is meaningless or of doubtful meaning. The courts are not entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself. (Per Lord Loreburn, L.C. in Vickers Sons and Maxim Ltd. v. Evans, quoted in Jumma Masjid v. Kodimaniandra Deviah). 9. While interpreting a provision the court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. (See CST v. Popular Trading Co.) The legislative casus omissus cannot be supplied by judicial interpretative process. 10. Two principles of construction - one relat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a fundamental rule of interpretation that courts would not fill the gaps in statute, their functions being jus discre non facere i.e. to declare or decide the law. In reiteration of this well-settled exposition, this Court in Union of India v. Dharamendra Textile Processors [Union of India v. Dharamendra Textile Processors, (2008) 13 SCC 369 : (2008) 306 ITR 277] had ruled that it is a well-settled principle in law that a court cannot read anything in the statutory provision or a stipulated provision which is plain and unambiguous. It was held that a statute being in edict of the legislature, the language employed therein is determinative of the legislative intent. It recorded with approval the observation in Stock v. Frank Jones (Tipton) Ltd. [Stock v. Frank Jones (Tipton) Ltd., [1978] 1 All ER 948 : [1978] 1 WLR 231 (HL)] that it is contrary to all rules of construction to read words into an Act unless it is absolutely necessary to do so. The observation therein that rules of interpretation do not permit the courts to do so unless the provision as it stands is meaningless or doubtful and that the courts are not entitled to read words into an Act of Parliament unless clear reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver exercised", said Marshall, C.J. of the United States, "for the purpose of giving effect to the will of the Judges; always for the purpose of giving effect to the will of the legislature; or in other words, to the will of the law". 16. If the legislature wilfully omits to incorporate something of an analogous law in a subsequent statute, or even if there is a casus omissus in a statute, the language of which is otherwise plain and unambiguous, the Court is not competent to supply the omission by engrafting on it or introducing in it, under the guise of interpretation, by analogy or implication, something what it thinks to be a general principle of justice and equity. To do so "would be entrenching upon the preserves of legislature", the primary function of a Court of law being jus dicere and not jus dare. 23. We have said enough and we may say it again that where the legislature clearly declares its intent in the scheme and language of a statute, it is the duty of the Court to give full effect to the same without scanning its wisdom or policy, and without engrafting, adding or implying anything which is not congenial to or consistent with such expressed intent of the law-giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of any body of persons, any adjudicatory functions; (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; (vii) any person who holds an office by virtue of which he is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election or part of an election; (viii) any person who holds an office by virtue of which he is authorised or required to perform any public duty; (ix) any person who is the president, secretary or other office-bearer of a registered co-operative society engaged in agriculture, industry, trade or banking, receiving or having received any financial aid from the Central Government or a State Government or from a corporation established by or under a Central, Provincial or State Act, or any authority or body owned or controlled or aided by the Government or a Government company as defined in section 617 of the Companies Act, 1956 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 54. Addressing the impact and effect of sub-section (vi), it is apparent that it is in respect of an individual appointed in the capacity of an Arbitrator who is referred a matter to adjudicate upon rival claims instituted by a litigant, whether appointed by a court of justice or a competent public authority, yet, it does not include any individual who is performing the role of a "facilitator". An Arbitrator adjudicates the claims and delivers an award which can be enforced like a decree in a civil court. Apparently, no such adjudicatory role is played by the IP. By applying the doctrine of "noscitur a sociis", it is apparent that the words "other person" stipulated in sub-section (vi) would be an individual who would be performing a role akin to or similar in nature of an Arbitrator. 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 appoint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed above, viz., IRP or Liquidator, there could be a possibility of discharge of duties which may have certain duties appearing to be "public duties" but whether the role of an individual as RP are in the nature of "public character", is hard to conclude. This view, coupled with the view taken by the Hon'ble Supreme Court in Swiss Ribbons (supra) and ArcelorMittal (supra) though in respect of the Resolution Professional, fortifies the opinion of this Court that Insolvency Professional is only a "facilitator" and has different roles to play at different stages of CIRP. In fact, the IP metamorphosizes from an IRP to an RP and thereafter as a Liquidator (as the case may be), and due to such metamorphosis, it would be prudent not to characterize the duties, even if assumed to be "public", as in the nature of "public character". 58. In the aforesaid backdrop, it is clear to this Court that despite having all the previous Acts on the instant subject like The Provincial Insolvency Act, 1909, the Insolvency Act, 1920, SICA 1985, RDDBFI Act 1994 and SARFAESI 2002 which were codified to form IBC and despite being aware of the roles and duties ascribed upon the individuals who were appointed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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