2023 (2) TMI 770 - AT - Companies Law

Appeal dismissed in winding-up petition case; Tribunal upholds decision based on legal principles

The appeal challenging the National Company Law Tribunal's decision to dismiss the winding-up petition against the Respondent company was dismissed. The ... Winding up of company - Sections 271 and 272 of the Companies Act, 2013 - HELD THAT:- On going through the pleadings made on behalf of the parties and also 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 vide in the case of “Registrar of Companies Vs. Apoorva Leasing Finance & Investment Company Limited and Another”. Supreme Court held that it only needs to be clarified that the order of the NCLAT, which had come to the conclusion that there was a violation of the principles of natural justice in adhering to the provisions of Section 272(4) of the Companies Act 2013, will not come in the way of the appellant taking recourse to the remedies available in law after following due process. 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. Allegations of money laundering and fraudulent activities by the Respondent company.3. Validity of the sanction letter dated 29.08.2017.4. Application of principles of natural justice in granting the sanction.Detailed Analysis:1. Legality of the Impugned Order Dated 18.12.2019:The appeal challenges the order of the National Company Law Tribunal (NCLT), New Delhi, which dismissed the winding-up petition against the Respondent company. The NCLT's decision was based on the similarity of facts with a previously dismissed case, 'Registrar of Companies Vs. Apoorva Leasing Finance And Investment Company Ltd.' The NCLT concluded that there was no reason to come to a different conclusion and dismissed the petition on both grounds of lack of sanction and on merit.2. Allegations of Money Laundering and Fraudulent Activities:The Appellant's case was based on the Serious Fraud Investigation Office (SFIO) report dated 31.03.2016, which revealed that the Respondent company was involved in money laundering activities. The SFIO found that the Respondent company, along with 48 other companies controlled by the Jain Brothers, was used for rotating money through book entries without any purposeful business. The investigation detailed the modus operandi of money laundering, including the creation of share capital and reserves through circular transactions and the use of shell companies for laundering unaccounted cash.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 letter was addressed to the Director, SFIO, requesting assistance in filing the winding-up petition. The Appellant contended that there is no prescribed format for granting sanction and that the letter constituted official permission. However, the Tribunal found that the sanction letter did not contain specific allegations against the Respondent company, nor did it indicate that the company had been given a reasonable opportunity to make representations.4. Application of Principles of Natural Justice in Granting the Sanction:The Tribunal referred to the judgment in 'Registrar of Companies Vs. Apoorva Leasing Finance & Investment Company Limited,' where it was held that the sanctioning authority must provide a reasonable opportunity for the company to make representations and must apply a judicial mind in considering those representations. The Tribunal found that the sanction in the present case was granted without giving the Respondent company a reasonable opportunity to make representations and without proper application of mind, thus violating the principles of natural justice.Conclusion:The Tribunal concluded that the facts of the present case were identical to the previously decided case of 'Registrar of Companies Vs. Apoorva Leasing Finance & Investment Company Limited,' which had been upheld by the Supreme Court. Therefore, the appeal was dismissed on the grounds of lack of merit. The Tribunal emphasized that the order of the NCLT was in line with established legal principles and did not warrant interference.Separate Judgments:No separate judgments were delivered by the judges in this case. The judgment was a collective decision of the Tribunal.