TaxTMI 
TaxTMI 
2017 (9) TMI 195
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....irector of 'Himalya Simplot'. It has also been prayed that an order be issued for refund of US$ 2 million equity along with 18% interest per annum in favour of the petitioners and against the respondents. 2. Before we embark upon examination of facts, it would be first appropriate to preface this order by noticing the law on investigation into the affairs of the company. The object of an investigation under Section 213(b) of 2013 Act is to unearth something which is hidden and is not apparent or invisible to the naked eye. In cases where the facts are apparent from the perusal of the record or are otherwise in public domain having been communicated to the Registrar of Companies or posted on the portal of the MCA website, then investigation need not be ordered. Investigation is ordinarily ordered in cases where funds of the company have siphoned of in a manner shrouded in mystery or accounts of the company or its management have been conducted in a manner which is shrouded in a mystery. Therefore, at least a prima facie evidence must exist with regard to existence of such circumstances which would lead to the conclusion that an investigation is imperative and must be ordere....
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....n, the existence of the circumstances, if questioned, has to be proved at least prima facie. It is not sufficient to assert that the circumstances exist and give no clue to what they are because the circumstances must be such as to lead to conclusion is of certain definiteness. The conclusions must relate to an intent to defraud, a fraudulent or unlawful purpose, fraud or misconduct or the withholding of information of a particular kind. We have to see whether the Chairman in his affidavit has shown the existence of circumstances leading to such tentative conclusions. If he has, his action cannot be questioned because the in reference is to be drawn subjectively and even if this Court would not have drawn a similar inference that fact would be irrelevant. But if the circumstances pointed out are such that no inference of the kind stated in s. 237(b) can at all be drawn the action would be ultra vires the Act and void". 3. According to the view taken by the Hon'ble the Supreme Court the exercise of jurisdiction to order investigation is limited to the extracted grounds. An order of investigation which is not based on the circumstances suggesting an inference of the kind extract....
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....TORS OF HIMALYA SIMPLOT PRIVATE LIMITED HELD ON WEDNESDAY. 6th DAY OF MARCH, 2013 AT 10.00 AM AT THE 999 MAIN ST., SUITE1300, BOISE, ID 83702, IDAHO, UNITED STATES OF AMERICA. RESOLVED THAT the due to unresolved deadlock about major items between the shareholder of Company i.e. Himalya International and Simplot India LLC, the Board of Directors of the Company be and is hereby accorded to start the process of windup of the Company. FURTHER RESOLVED THAT the Shareholder will mutually discuss and decide the process to be laid down for windup of the Company. Board of director has decided to from a 2 Man Committee i.e. Mr. Sanjiv Kakkar (representative of Himalya International Limited) and Mr. Nikhil Tandon (Representative of Simplot India LIC) for the process to be laid down considering the best interest of the Shareholders and other stakeholders. RESOLVED FURTHER THAT the Normal Business transaction will be continuing by 15th of May, 2013 and thereafter the windup process agreed will be laid down". 7. 'Simplot India' deals with food item and opening of retail outlets. It is alleged that respondent Nos. 2 to 7 are in complete control and possession of 'Simplot India&....
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....ribunal. Respondents have also placed on record a list of cases which have been filed, pending and decided between the parties and the list is as under: List of Litigation between Parties Court and Case No. Parties Status Singapore International Arbitration Centre (SIAC) ARB/108/13/AP Simplot India LLC, SIFPL v. HIL Concluded Singapore International Arbitration Centre (SIAC) ARB/107/13/AP Simplot India LLC. SIFPL v. HIL Stayed High Court of Delhi at New Delhi: CS(OS) 1231/2013 HIL v. SIFPL, HSPL Dismissed High Court of Delhi at New Delhi: CS(OS) 1848/2013 HIL v. SIFPL, Simplot India LLC Concluded Delhi International Arbitration Center DAC/438/12-13 HIL v. SIFPL Pending Competition Commission of India; 92/2013 HIL v. HSPL. SIFPL, Comida, Simplot India LLC Dismissed Competition Appellate Tribunal, New Delhi 18 of 2014/105 HIL v. HSPL, SIFPL, Comida, Simplot India LLC Dismissed High Court of Delhi at New Delhi: Co. Pet.371 of 2014 Simplot India LLC v. HIL Dismissed High Court of Delhi at New Delhi: RFA(OS) 57/2014 HILv. SIFPI. Dismissed High Court of the Republic of Singapore: OS 695/2015 HIL v. Simplot India LLC, SIFPL Concluded High Court of Delhi ....
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....urther resolved that process of winding up of 'Simplot India' be started and two Men Committee of Mr. Sanjiv Kakkar and Mr. Nikhil Tandon for the process to be laid down for winding up was also suggested. 'Simplot India' has not been transacting any business after March 2013 and prayer for investigation of this company remains only a dream of the petitioner. 13. We have heard learned Counsel for the parties at length and have perused the record with their able assistance. 14. We repeatedly asked learned Counsel for the petitioner to show any document or evidence which may lead us to draw an inference with regard to the allegations and averments made in various paras of the petition. We also candidly told him that these averments cannot constitute the basis for us to conclude that any fraud exists since no intention has been displayed by some persuasive record to conclude the existence of fraudulent transaction. The expression 'averment' is a formal statement including an offer of proof or substantiation which is completely missing. 15. When we apply the principles extracted from the Five Judge Constitution Bench rendered in Barium Chemicals Ltd. (supra), ....