TaxTMI 
TaxTMI 
2019 (5) TMI 1517
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....nvestigation Office (SFIO). SFIO has submitted his report dated 30.6.2009 to Ministry of Corporate Affairs on 3.7.2009. It is pleaded that as per the SFIO report there are Inter corporate deposits to the tune of Rs. 23,22,44,266.55/- made by the following three petitioners to the respondent company.:- S.No. Name Company Amount 1 JVG Finance Limited Petitioner 1 18,71,03,306.55/- 2 JVG Foods Limited Petitioner 2 4,51,31,000.00/- 3 JVG Farm Fresh Limited Petitioner 3 9,960.00/- Total 23,22,44,266.55/- 2. SFIO in the course of investigation has also noted that as per the annual return filed by the respondent company, a large number of companies which forms part of the JVG Group which are also in liquidation are holding shares in the respondent company. Petitioner No.1 JVG Finance Ltd. itself is holding 22,99,400 shares in the respondent company. JVG Foods Ltd. Petitioner No.2 is holding 4,24,000 shares and JVG Farm Fresh Ltd. is also holding 4,24,000 shares in the respondent company. 3. The petition also points out that SFIO after investigating....
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....deration. The balance-sheets and other documents that were shown to the present Management did not reflect any liability as claimed. It is pleaded that the respondent company is a separate and distinct legal entity and has nothing to do with the JVG Group of Companies. It is also stated that the claim of the petitioner is barred by limitation and the said claim is stale and belated. However, in the reply filed, there is no denial by the respondent regarding the shareholdings by the JVG Group of Companies in the respondent company. 8. One Mr. V.K. Sharma stating himself to be the Ex. Chairman-cum-Managing Director of JVG Group of Companies has filed an affidavit in support of the present petition. He states that the respondent company was incorporated as a Public Limited Company on 26.08.1996 with an authorized share capital of Rs. 500 crores. He states that subsequently, the respondent company changed its name M/s Golden Gate Industries Ltd. on 19.11.2012. He states that the act of renaming the respondent company to M/s Golden Gate Industries Ltd. was a deliberate attempt of the respondent as it was done with the purpose of only to reflect that M/s Golden Gate Industries Ltd. wa....
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....ance was used from JVG Finance Limited to purchase the land. It was also denied that Inter-Corporate loan of Rs. 23.22 crores is outstanding against the company. 10. Learned counsel appearing for the respondent has submitted as follows:- (i) She has pointed out that against the order dated 30.4.2012 passed in CCP(Co.)17/2017 in Co.Pet.265/1998 an appeal was filed before the Division Bench being Company Appeal No.06/2016. Said appeal was disposed of on 25.10.2016 stating that in a winding up petition which has been filed the respondent would have full rights to project its defence and the Company Judge would pass an order uninfluenced by any observations made by the court in its order dated 30.4.2012, which is only a tentative view. (ii) Secondly, she has relied upon a certificate issued by one Upender Singh as Director on 1.1.2007 stating that the entire JVG Industries Ltd. alongwith equity shares and assets have been sold on consideration to Yare Engineering Private Limited and its associates. This certificate also states that the previous year's book entries are not debt due by the company and hence written off as per decision of the Board of Directors. It is....
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.... certify that the company JVG Industries Ltd. Alongwith equity shares and assets have been sold for consideration to Yare Engineering Pvt.Ltd. and its associates as per the amounts received by the company, its ex.promoters and directors and other associates without passing any liability or encumbrances. It is further clarified that the previous year's book entries are not debt due by the company hence already written off as per decision of the board of directors. Signed at New Delhi on 01.01.2007 -sd- Upender Singh Director" 14. It is not clear as to how this document absolves the liabilities stated in the Statement of Account of the respondent company. Merely because the shares of the respondent company were sold by some of the promoters to the present Management does not wash away liability of the respondent company on account of inter corporate loan received from the petitioner company. 15. In my opinion, the balance-sheets of the respondent company, clearly and unequivocally demonstrate the dues payable to the petitioner company. 16. The other aspect as pleaded in the petition relates to purchase of the land in District Gurgaon and M....
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..... 17 07 11 2,29,05,740 -do- 11. JVG Overseas Ltd. 26 02 10 2,82,44,937 -do- 12. JVG Finance & Services Ltd. 03 06 13 46,64,790 -do- 13. JVG Publication Ltd. 00 03 14 19,42,500 -do- 14. JVG Industries Ltd. 00 03 14 19,42,500 -do- 15. Goga Foods Ltd. 06 02 08 72,45,239 -do- 16. India Ceroils Ltd. 01 00 19 26,63,402 -do- 17. Santosha Resorts Pvt. Ltd. 01 00 19 26,63,402 -do- 4.1.3 Shri Sushil Gupta or his partner has made sale deeds in favour of, various above said companies by signing on behalf of these Companies, as per directions of the Shri Vijay Kumar Sharma, ex.CMD of JVG Group. Shri Vijay Kumar Sharma has also confirmed the same as per his letter dated 1.9.1997 and submitted by Shri Sushil Kumar Gupta as (Annexure-21). It is evident from above table that Shri Vijay Kumar Sharma with the connivance of his relatives/associates has purchased land worth Rs. 22.80 crore in names of various JVG Group Companies, using the funds of M/s JVG Finance ltd. It is also clear from the letter of Shri Vijay Kumar Sharma dated ....
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....he respondent Company. That apart, a total of 59,81,900 shares are owned by the JVG Group of Companies in the respondent company which companies are also in liquidation. Despite having such a large shareholding, no notices are being sent to the Official Liquidator, who is now the Liquidator of the aforenoted various companies, about holding any meetings or sending copies of any balance sheets, annual accounts etc. It is clear that the respondent Company is acting in a manner which is prejudicial to its shareholders and to the affairs of the company. 21. Further, the respondent company was closely linked to petitioner No.1 and the JVG Group. It has been hived off to escape the necessary consequences when the OL took over most of the companies forming part of the JVG Group. There are serious disputes in the manner the present management has taken over the control of the company. In my opinion, it would be just and equitable that the respondent is accordingly wound up. Further the respondent continues to sit on large funds received from the petitioner companies when it was part of the JVG Group of Companies. 22. In this context reference may be had to Hind Overseas Pvt. Ltd. vs.....
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....generis with the preceding five clauses. While the five earlier clauses prescribe definite conditions to be fulfilled for the one or the other to be attracted in a given case, the just and equitable clause leaves the entire matter to the wide and wise judicial discretion of the court. The only limitations are the force and content of the words themselves, "just and equitable".........." 23. Similarly, reference may be had to the judgment of this court in the case of International Caterers Pvt. Ltd. & Ors. V. Manor Hotel Pvt.Ltd. 122 (2005) DLT 20 where this court held as follows: "34. No doubt, in the case of Hind Overseas P.Ltd. Vs. Raghunath Prasad Jhunjhunwalla and another reported as (1976) 46 Comp.Cas.91, the Supreme Court emphasized that relief under Section 433(f), based on just and equitable clause, is in the nature of a last resort when other remedies are not efficacious enough to protect the general interests of the company and it is not a proper principle to encourage hasty petitions for the winding up of a company without first attempting to sort out the dispute and controversy between the members in the domestic forum in conformity with the Articles of Asso....