TaxTMI 
TaxTMI 
2013 (2) TMI 284
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.... writ in the nature of mandamus directing Respondent Nos.1 and 2 to initiate action against Respondent no.3 and/or its Directors/Representatives/Employees/ Officials etc. including Respondent no.4 and 5 under Sections 628 and 629 of the Companies Act, 1956; and (a). Pass any or other order(s) as this Hon'ble Court deems fit and proper in the facts and circumstance of the case..." 2. It may be noted, however, at the outset that this is a second round of litigation in this court and a fresh attempt made at dragging respondent no.3, which is a foreign company, carrying on banking business in India, after adjudication by the Karnataka High Court and the resultant dismissal of the special leave petition both on the grounds of delay as well as on merits. 2.1 Though it is sought to be argued before me that, the petitioner by pressing the reliefs sought for in the present writ petition was seeking to trigger a criminal action against respondent no.3 and in a sense espousing a public duty; it is quite clear that the purport and the intent has been to inveigle respondent no.3 in criminal proceedings, so that, in the recovery proceedings instituted against the petitioner, it can leve....
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....dent no.3 that in accordance with the provisions of the laws of India, requisite filings were made before the concerned statutory authorities. It is the case of respondent no.3 that Form 49 was filed with the concerned Registrar of Companies (in short ROC) under section 593 of the Companies Act, 1956 (in short Companies Act), as also the requisite filing was made with the Reserve Bank of India (in short RBI), to bring on record the factum of change of name. 11.1 In so far as the RBI was concerned, by a Gazette Notification dated 27.04.1996, an amendment was made to the Second Schedule to the RBI Act, 1934 whereby, the alteration in the change of name of respondent no.3 was carried out. This change of name by the RBI was followed by order dated 14.08.1996, whereby respondent no.3 was authorised to open a branch in Bombay (now Mumbai) under the name and style: Bank of Tokyo - Mitsubishi Limited. 12. As regards the ROC, it is the case of respondent no.3 that Form 49, referred to above was filed on 05.08.1996. The petitioner disputes this fact and it is this issue which is at the heart of the matter. 13. It is the case of the petitioner that as a matter of fact no filing was m....
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....ormation was available with them since 1999, a fact which was conveyed to respondent no.3 and therefore, steps were taken to cover up the lacuna by respondent no.3. Learned senior counsel for the petitioner, when probed further, conceded that there was no document on record which would establish the submission made at the bar. 16. Suffice it to say, the ROC appears to have issued two communications to respondent no.3 dated 05.09.2001 and 03.12.2001, wherein the non-availability of the document which would show compliance with the provisions of section 593 of the Companies Act, was brought to fore. 17. It appears it was these communications which led to respondent no.3 filing a duplicate Form 49, with the ROC, on 03.04.2002. 18. It also appears that a second duplicate Form 49 was filed on 05.04.2004, which was received by the ROC, on 06.04.2004. Importantly, in the said form, reference is given of a receipt bearing no.196989 dated 05.08.1996, whereby a sum of Rs.200/- was deposited for processing the request made, evidently, for change of name of respondent no.3; which is also incidentally the receipt to which reference is made in the first duplicate Form no.49, filed on....
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....etitioner had, in the interregnum filed a criminal complaint under section 156(3) of the Code of Criminal Procedure, 1973 (in short Cr.PC), for initiation of criminal proceedings after due investigation, under the provisions of section 120 (B), 465, 466, 468, 471 and 477-A of the Indian Penal Code, 1860 (in short IPC). 24. The Magistrate, apparently, had ordered investigation, not once, but twice into the allegations made by the petitioner. The investigation revealed that no cognizable offence was committed as alleged by respondent no.3 and/or its officers. Consequently, by an order dated 30.11.2010, the petitioner's application was dismissed by the. 25. The petitioner challenged the order of the Magistrate dated 30.11.2010, by way of a criminal revision petition being: No.323/2011. By an order dated 05.09.2012, the Additional Sessions Judge, Greater Bombay dismissed the said revision petition with cost of Rs.5 Lakhs, out of which, Rs.4 Lakhs has been directed to be paid to respondent no.3, while Rs.1 Lakh was directed to be paid to the State Legal Aid Fund. 26. I may only note that, across the bar, the counsels for the petitioner informed me that a petition had been filed....
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....ling if at all made, sought to inform the ROC with regard to the changes relevant under section 593 (d) and (c) of the Companies Act. It was contended that a perusal of the said document itself would show that respondent no.3 was seeking to inform the ROC with regard to the changes made qua its Board of Directors. In other words, there was no reference to the provisions of section 593 (a) of the Companies Act, which would have been so, if the filing related to the change in name, as is now sought to be contended. 29. On the other hand, Mr. Nayar, learned senior counsel for respondent no.3 argued that the petitioner was seeking to re-agitate the issue once again which was barred by the principles of res judicata in view of the fact that these very issues were raised before the Karnataka High Court, which were rejected by the said court vide its judgment dated 02.07.2008. Mr. Nayar in order to support his submission drew my attention, specifically to, paragraphs 59 to 62, 67 and 72 of the said judgment. 29.1 In order to support the aforesaid contention, he also referred to paragraph 5.14 of the special leave petition filed by the petitioner, wherein there is a specific averment....
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....rgery made by the petitioner. 34. In rejoinder, learned senior counsel for the petitioner sought to lay emphasis, once again, on the affidavit filed by Sh. Brij Mohan Chhabra; a copy of which has been filed by the petitioner alogwith CM No.9581/2012. Apart from this, submissions already made, in the opening by the learned senior counsel for the petitioner, were reiterated. REASONS 34. To be noted, there are two interlocutory applications filed by the petitioner. The first one being: CM No.9851/2012 by which certain additional documents were sought to be brought on record. Even though six documents were filed, learned senior counsel for the petitioner sought to place reliance, during the course of the arguments, on two documents. The first one was the affidavit filed by Sh. Brij Mohan Chhabra. I have already made a reference to the said document, during the course of my narrative above. The other application being: CM No.27/2013, is filed to seek discovery and production of documents, which are in possession of the official respondents i.e., respondent nos. 1 and 2. At the very outset, in so far as, the second application is concerned, it was fairly conceded by the learn....
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....es of Association or other instrument constituting or defining the constitution of the company. A brief description of the alteration is given hereunder:- "At an Extraordinary / General Meeting of the shareholders of the company held Tokyo (Japan) on 29th day of June, 1995 ordinary/special resolution was passed authorizing Change of Name / Articles of Association. Certified copy of the resolution and / or the copy of the amended document should be enclosed. If the resolution or document is not in the English language, a certified translation thereof must accompany this return)" w.e.f. 1st April, 1996..." 38. Evidently, the underlined part was written by hand by Sh. Brij Mohan Chhabra. In the affidavit filed before the DRT, this aspect is admitted by Sh. Chhabra. He, however, also avers with regards to other aspects, which is, the steps taken to satisfy the ROC that the original Form 49 had been filed, on 05.08.1996. Apart from anything else, Mr. Brij Mohan Chhabra in his affidavit of 04.01.2005, referred to the letters dated 17.05.1996 and 22.07.1996, to establish that a filing had been made on 05.08.2006. 38.1 As indicated above, admittedly, a receipt for a filing m....
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....nadvertent one, which is ascribable to the fact that the covering letter was obviously signed by a person who was not obviously instructed in law. The mistake seems to have occurred on account of language of clause d of section 593, which reads as follows:- "..593. Return to be delivered to Registrar by foreign company where documents, etc., altered - if any alteration is made or occurs in - (a). the charter, statutes, or memorandum and articles of a foreign company or other instrument constituting or defining the constitution of a foreign company; or (b). x x x (c). The directors or secretary of a foreign company; or (d). the name or address of any of the persons authorized to accept service on behalf of a foreign company; or (e). the principal place of business of the company in India, the company shall, within the prescribed time, deliver to the registrar for registration a return containing the prescribed particulars of the alteration.." 38.6. It is possible that author of letter dated 22.07.1996 read first part of clause (d) of section 593 in a manner, which was disjunct from the latter part of clause (d). As would be noticed, the first part refers to the ....