2023 (1) TMI 1177 - AT - Companies Law

Winding-up petition dismissed by NCLT citing lack of merit & sanction letter issues

The National Company Law Tribunal (NCLT), New Delhi Bench, dismissed a winding-up petition against a company, citing lack of sanction and merit, similar ... Legality of the impugned order passed by the National Company Law Tribunal, New Delhi Bench whereby the winding up petition filed against the Respondent company was dismissed - HELD THAT:- In view of the Judgment passed by Hon’ble three Member Bench of this Tribunal in the case of REGISTRAR OF COMPANIES NCT DELHI AND HARYANA VERSUS APOORVA LEASING FINANCE & INVESTMENT CO LTD, UNION OF INDIA, THROUGH THE SECRETARY, MINISTRY OF CORPORATE AFFAIRS, NEW DELHI. [2019 (12) TMI 1634 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI.] which has attained finality as the Civil Appeal has also been dismissed by the Hon’ble Supreme Court in UNION OF INDIA VERSUS APOORVA LEASING FINANCE AND INVESTMENT CO LTD AND ANOTHER [2021 (1) TMI 1293 - SC ORDER], it is found that facts of the instant Appeal are same and identical to the case which was dismissed by this Appellate Tribunal in the case of Registrar of Companies Vs. Apoorva Leasing Finance & Investment Company Limited and Another - It was held in the said case that Under the provisions of Section 423, this Court is empowered to condone a delay (beyond the original period of limitation of 60 days) only to the extent of a further period of 60 days. Hence, since the appeal has been filed beyond the maximum period that can be condoned under the proviso to Section 423, the appeal cannot be entertained and is accordingly dismissed on the ground of limitation. There is no merit in the Appeal, the instant Appeal is hereby dismissed. Issues Involved:1. Legality of the impugned order dated 18.12.2019.2. Examination of the facts and findings from the SFIO investigation.3. Validity of the sanction letter dated 29.08.2017.4. Examination of the Tribunal's decision regarding the involvement of Jain Brothers.5. Consideration of the Tribunal's reliance on the precedent set in 'Registrar of Companies Vs. Apoorva Leasing Finance & Investment Company Limited.'Detailed Analysis:1. Legality of the Impugned Order Dated 18.12.2019:The Appellant challenged the impugned order dated 18.12.2019, passed by the National Company Law Tribunal (NCLT), New Delhi Bench, dismissing the winding-up petition against the Respondent company. The Tribunal dismissed the petition on both grounds of lack of sanction and merit, referencing a similar case, 'Registrar of Companies Vs. Apoorva Leasing Finance And Investment Company Ltd.,' where the appeal was dismissed by the NCLAT.2. Examination of the Facts and Findings from the SFIO Investigation:The Appellant filed the winding-up petition based on the SFIO Report dated 31.03.2016, which revealed that the Respondent company was involved in money laundering activities controlled by S.K. Jain and Virendra Jain (referred to as 'Jain Brothers'). The SFIO found that 49 companies, including the Respondent, were involved in circular transactions to create share capital, share application money, share premium, and reserves and surplus through accounting entries and circular transactions.3. Validity of the Sanction Letter Dated 29.08.2017:The Appellant argued that the letter dated 29.08.2017 was a valid sanction letter issued after due discussion and deliberation. The Tribunal, however, found that the sanction order did not contain specific allegations against the Respondent company, nor did it show that the company was given a reasonable opportunity to make representations. The Tribunal relied on the precedent set in 'Registrar of Companies Vs. Apoorva Leasing Finance & Investment Company Limited,' where the sanction was found to be granted without applying judicial mind and without giving the company a reasonable opportunity of representation.4. Examination of the Tribunal's Decision Regarding the Involvement of Jain Brothers:The Appellant contended that the Tribunal failed to examine how S.K. Jain entered the company and transferred accommodation entries to the current management. The Appellant argued that the Jain Brothers controlled 49 group companies, including the Respondent, and were involved in money laundering activities. The Tribunal, however, dismissed the petition, noting that the facts of the case were identical to the previously dismissed case involving Apoorva Leasing Finance & Investment Company Limited.5. Consideration of the Tribunal's Reliance on the Precedent Set in 'Registrar of Companies Vs. Apoorva Leasing Finance & Investment Company Limited':The Tribunal relied heavily on the precedent set in 'Registrar of Companies Vs. Apoorva Leasing Finance & Investment Company Limited,' where the appeal was dismissed due to lack of proper sanction and violation of principles of natural justice. The Supreme Court upheld this decision by dismissing the appeal on the ground of limitation, noting that the order of the NCLAT, which found a violation of principles of natural justice, would not prevent the appellant from taking recourse to remedies available in law after following due process.Conclusion:After considering the arguments and the precedent set in the case of 'Registrar of Companies Vs. Apoorva Leasing Finance & Investment Company Limited,' the Tribunal found no merit in the instant appeal. The appeal was dismissed, and the Tribunal's decision was upheld. The Registry was directed to upload the judgment on the website of the Appellate Tribunal and send a copy to the NCLT, New Delhi Bench, forthwith.