TaxTMI 
TaxTMI 
2017 (9) TMI 195
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....elson has been appointed as an additional Director 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 i....
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....i) the secretaries and treasurers, (iv) the managers. Since the existence of "circumstances" is a condition fundamental to the making of an opinion, 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 ....
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....India' to start the process of winding up of the company which makes interesting reading and reads as under: "EXTRACTS OF THE MINUTES OF THE MEETING OF BOARD OF DIRECTORS 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 wil....
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....proached this Tribunal with uncleaned hands by making false averments, mis-representation and concealment of material facts. Accordingly, they have lost the right to claim any equitable relief before this Tribunal. 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 D....
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.... custody of the respondents. There are further allegations of mis-joinder and non-joinder. 12. The resolution passed by the company on 06.03.2013 and extracted in the preceding paras would show that there was unresolved deadlock about major items between the two groups of shareholders. It was further 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 concl....