TaxTMI 
TaxTMI 
2020 (4) TMI 276
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..... Mahesh Agarwal, Mr. Rahul Dwarkadas, Mr. Rajeev Kumar, Ms. Prachi Dhyani, Advocates. And Others For the Respondents : Mr. Karan Khanna, Mr. George Varghese, Ms. Ritu Anand, Advocates, Mr. Pratap Venugopal, Advocate, Mr. Sanjay Shorey and Mr. C. Balooni And Others JUDGMENT SUDHANSU JYOTI MUKHOPADHAYA, J. The Central Government on its opinion that the affairs of 'Infrastructure Leasing and Financial Services Limited' ("IL&FS") and its Group Companies are conducted in a manner prejudicial to the public interest applied to the National Company Law Tribunal ("Tribunal" for short), Mumbai Bench, Mumbai for issuance of orders and directions as sought for and as the Tribunal deemed fit. 2. In Company Petition No. 3638 of 2018, Miscellaneous Application No.2071 of 2019 was filed by the Central Government for impleadment of various persons, including the Appellant(s) herein, as parties to the said Petition. By way of an order dated 18th July, 2019, the Tribunal allowed the Miscellaneous Application and directed impleadment of inter alia the Appellant(s) as parties to the said Company Petition. 3. Miscellaneous Application No. 2258 of 2019 was filed by 'Deloitte Haskins & ....
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....Infrastructure Leasing & Financial Services' ('IL&FS'), until F.Y. 2017-2018 and also acted as a Joint Auditor of 'IL&FS Financial Services Limited' with 'BSR & Associates LLP'. 11. It was submitted that by impugned order dated 18th July, 2019 in Miscellaneous Application No. 2071 of 2019, the Appellant has been wrongly impleaded as a party Respondent in Company Petition No. 3638 of 2018 as the Appellant during the F.Y. 2017-2018 was not at all concerned with the management and day-to-day affairs of 'IL&FS' and was only a Partner of 'Deloitte Haskins & Sells LLP', therefore, neither a necessary nor a proper party for adjudication of the said Company Petition. Company Appeal (AT) No. 194 of 2019 12. The Appellant- 'Mr. Udayan Sen' is a partner in 'Deloitte Haskins & Sells LLP' which was acting as an Auditor of 'IL&FS Financial Services Limited'., a 100% subsidiary of 'Infrastructure Leasing & Financial Services' ('IL&FS'), until F.Y. 2017-2018 and also acted as a Joint Auditor of 'IL&FS Financial Services Limited' with 'BSR & Associates LLP'. 13. It was submitted that by impugned order dated 18th July, 2019 in Miscellaneous Application No. 2071 of 2019, the Appellant has....
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....ellaneous Application No. 2071 of 2019, the Appellant has been wrongly impleaded as a party Respondent in Company Petition No. 3638 of 2018 on an incorrect interpretation of Order 1 Rule 10 of Civil Procedure Code, 1908 and Section 245 of the Companies Act, 2013, and was neither a necessary nor a proper party for adjudication of the said Company Petition. It was further submitted that the Appellant was never in-charge of nor responsible for the management and operations of 'IFIN' and was only the engagement partner of 'BSR & Associates LLP'. Company Appeal (AT) No. 197 of 2019 18. The Appellant- 'BSR & Associates LLP' was the Joint Statutory Auditor of 'IL&FS Financial Services Limited' ('IFIN') for the F.Y. 2017-2018 along with 'Deloitte Haskins & Sells LLP'. It was submitted that the Appellant had never been Statutory Auditors of 'IL&FS' while 'Deloitte Haskins & Sells LLP' had been the sole auditors of IFIN for nine years prior to that i.e., for the period F.Y. 2007-2008 to 2016-2017. On May, 2018, the Statutory Auditors of 'IFIN' (including the Appellant) rendered their Audit Report on the financial statement of IFIN for the F.Y. 2017-2018. 19. It was submitted that by....
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....cellaneous Application No. 2071 of 2019, the Appellant has been wrongly impleaded as a party Respondent in Company Petition No. 3638 of 2018 as the Appellant had resigned from 'IFIN's Board on 25th July, 2016 and prior to that was an Independent Director of 'IFIN' and was not at all concerned with the management and day-to-day affairs of 'IL&FS'. Therefore, Appellant was neither a necessary nor a proper party for adjudication of the Company Petition filed for alleged oppression and mismanagement of 'IL&FS'. 24. It was further submitted that the Appellant was not a part of 'IFIN's audit committee and, therefore, could not have been equated with those independent directors who were on the Audit Committee. Further, it was submitted that no final reliefs were claimed in the Company Petition against the Appellant and, therefore, there was no question of any interim protective orders being granted against the Appellant. Company Appeal (AT) No. 207 of 2019 25. The Appellant- 'Mr. Rajesh Kotian' was the ex-director of the 'IL&FS Financial Services Limited' ('IFIN') and had resigned on 3rd July, 2019. It was submitted that by impugned order dated 18th July, 2019 in Miscellane....
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....n April 2014 as per the mandate under Companies Act, 2013. It was submitted that the Appellant was neither a member of Audit Committee nor had any special privilege. 32. It was submitted that by impugned order dated 18th July, 2019 in Miscellaneous Application No. 2071 of 2019, the Appellant has been wrongly impleaded as a party Respondent in Company Petition No. 3638 of 2018 as no final reliefs were claimed in the Company Petition against the Appellant who did not have any control over management and operations of lending business of 'IFIN'. 33. It was also submitted that the Tribunal had failed to consider that the Appellant had a subordinate delegated authority and limited role as an employee of the Company. Company Appeal (AT) No. 214 of 2019 34. The Appellant- 'Surinder Singh Kohli' was an Independent Director of 'IFIN' between 21st October, 2011 and 19th September, 2018. He was a part of 'IFIN's Audit Committee but was not a member of any committee of Directors of 'IFIN'. The Appellant was only a non-executive Independent Director of 'IFIN' and held no other position, save as aforesaid being a part of its Audit Committee. The Appellant was not involved in 'IFIN's ....
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....arred from adjudicating on matters in a petition under Section 241 on the basis of any material other than what is introduced in the petition. Company Appeal (AT) No. 222 of 2019 41. The Appellant- 'Mr. Udayan Sen' is a partner in 'Deloitte Haskins & Sells LLP' which was acting as an Auditor of 'IL&FS Financial Services Limited'., a 100% subsidiary of 'Infrastructure Leasing & Financial Services' ('IL&FS'), until F.Y. 2017-2018 and also acted as a Joint Auditor of 'IL&FS Financial Services Limited' with 'BSR & Associates LLP'. 42. It was submitted that by impugned order dated 9th August, 2019, the Tribunal had failed to appreciate that the Appellant being an erstwhile auditor and ceasing to act as an Auditor of IFIN from F.Y. 2017-18 could not be covered within the ambit of Section 140 (5) of the Companies Act, 2013. 43. It was submitted that Section 140(5) only applies to existing auditors and the Tribunal could not have by way of a deeming fiction interpreted the said Section to include erstwhile Auditors. Company Appeal (AT) No. 223 of 2019 44. In the present appeal, the Appellant- 'Mr. Kalpesh Mehta' who is a partner in 'Deloitte Haskins & Sells LLP' which was....
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....AT) No. 225 of 2019 50. The Appellant- 'Mr. Shahzaad Dalal' was a Non-executive Director of 'IFIN' from 26th October, 2006 and resigned from the Directorship on 26th March, 2015. 51. It was submitted that by impugned order dated 18th July, 2019 in Miscellaneous Application No. 2071 of 2019, the Appellant has been wrongly impleaded as a party Respondent in Company Petition No. 3638 of 2018 as there were neither any allegations made against the Appellant in the 2nd Interim Report of SFIO nor any final reliefs were claimed in the Company Petition against the Appellant giving rise to any interim protective orders being granted against the Appellant. 52. Furthermore, the Appellant submitted that the impugned order was entirely based on the criminal complaint and the allegations contained therein which was a separate and distinct proceeding in law and merely because such a complaint had been filed against the Appellant, the Appellant could not have been joined as a party to the Company Petition, which was for relief on the basis of allegations of oppression and mismanagement on the part of the company's management. Company Appeal (AT) No. 230 of 2019 53. The Appellant- 'Mr....
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....proper party to the said Company Petition. [See "Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay (1992) 2 SCC 524"-Para 61] Even otherwise, it may be noted: (a) the said Company Petition does not contain any statements, averments, allegations against the Appellant or its partners /employees and further no such averments have been sought to be added to the said Company Petition by way of the said Miscellaneous Application No. 2071 of 2019; (b) the Appellant's presence is not necessary to effectually and completely adjudicate the real controversy, which pertains to the management of the affairs of 'IFIN'- with which the Appellant in its capacity as a statutory auditor (now rotated out0 has never been concerned; and (c) the final reliefs originally sought in the said Company Petition were limited to replacement of the Board of Directors of 'IL&FS' and its subsidiaries including 'IFIN' (of which the Appellant was a statutory auditor), which has been done by way of order dated 1st October, 2018. Though the said Company Petition has been amended from time to time, at the time of passing of the Impugned Order no further final praye....
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....'). It was submitted that the application for the impleadment of inter alia the Appellant is based solely on the 2nd Interim Report of the SFIO dated 28th May, 2019. In the impugned order, the Tribunal has referred extensively to some of the allegations contained in the report against the Appellant and has held that, "The SFIO report clearly reveals prima facie evidence of involvement of proposed respondents.". In this regard, it is submitted as under: a. The SFIO investigation and the 2nd Interim Report prepared in pursuance thereof form part of an entirely separate and distinct proceeding in law and the 2nd Interim Report cannot automatically justify impleadment of the Appellant as a parry in a Petition under Sections 241-242 of the Companies Act, 2013; b. The contents of the 2nd Interim Report, are only allegations and the same must be proven by means of trial and by leading evidence before the Special Court (and the persons against whom allegations are raised are presumed 'innocent until and unless proven guilty'); and c. Under Section 223 of the Companies Act, 2013, reports under Section 212 of the Companies Act, 2013 (such as the 1st and 2nd Interim....
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....ate Government can initiate or continue any other investigation in this behalf. As an investigation under Section 212 of the Companies Act, 2013 is continuing in the present case, no other investigation can be initiated/proceeded with. Section 245 of the Companies Act, 2013: 67. In the Impugned Order, the Tribunal has erroneously equated a Petition filed under Section 241 (2) of the Companies Act, 2013 with Petitions filed under Section 245 of the Companies Act, 2013 with a view to supporting their application for impleadment. In this regard it is submitted as under: a. Whilst the Tribunal has rightly observed that Section 245 was not in operation at the time of the filing of the present Petition under Section 241(2) of the Companies Act, 2013, the Tribunal erroneously holds that Section 245 having been notified after the filing of the Petition, Respondent No. 1 "was authorised to initiate action under this Chapter, which is also class action suit /petition." It may be notified that the thresholds under Section 245 were notified on 8th May, 2019, i.e. prior to the filing of the said Miscellaneous Application. b. The Tribunal has failed to appreciate that the....
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....' and its group companies. 70.3. On 1st October, 2018, the Ministry of Corporate Affairs filed Company Petition No. 3638 / 2018 under Sections 241 and 242 of the Companies Act, 2013 before the Tribunal. The reliefs sought were, interalia, (i) suspension of the then Board of Directors of IL&FS and subsequent appointment of a new Board of Directors in terms of Section 242(2)(k) of the Companies Act, 2013 (ii) that such Board of Directors be authorized to replace directors of subsidiaries etc. of IL&FS (iii) seeking leave of the Tribunal, Mumbai to file supplement/ enlarge / amend / modify the scope of the reliefs sought and prayers made in the petition by filing any other documents or application in view of the extraordinary nature of the circumstances. 70.4. It is submitted that the Ministry of Corporate Affairs approached the Tribunal by way of an application seeking a moratorium on creditor proceedings against IL&FS and its group companies and to enable formation of an orderly resolution plan in light of the current circumstances facing the IL&FS group. The Tribunal declined to grant such reliefs by way of an order dated 12th October, 2018. 70.5. It was submitted that thi....
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....ing reference number Legal-35/16/2019 was issued by the Ministry of Corporate Affairs to the Regional Director (Western Region) and SFIO, requesting them to initiate appropriate proceedings. 70.14 In pursuance thereof, the SFIO, on 20th May, 2019 filed a Criminal Complaint before the Special Judge, Mumbai, against and amongst others, the parties sought to be impleaded. 71. Learned counsel for the Central Government submitted that the Tribunal has wide powers under Section 241(2) read with Section 242 of the Companies Act, 2013. 72. With regard to the former statutory auditors of 'IL&FS Financial Services Limited' ('IFIN') and its partners, it is submitted that the Central Government has not formed opinion on the basis of the SFIO Report as has been alleged by the Appellant(s). There are other facts, including 'RBI Inspection Report', 'ICAI Report' etc. which have also been taken into account while filing the application for impleading, inter alia, the Appellants. 73. Learned counsel for the Central Government has highlighted certain allegations as reported in the '2nd SFIO Report'/ 'RBI Inspection Report'/ 'ICAI Report' based on which the opinion is formed by the Centra....
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.... - Proposed Addl. Resp No. 321 - Para 59, Annexure 1, Vol 1, CA 190 of 2014 @ Pg 72 • Aware of the potential problematic accounts which were getting stressed from the reports generated through Management Information System(MIS) of IFIN. • Adopted fraudulent practices to not let loan/credit facility be classified as NPA. • While lending to ITNL, breached RBI guidelines/directions and devised an illegal strategy to lend the money to its group companies. • Supported the group entities by lending through vendors/third parties. • Connived with management/directors and became mute spectators. • Overlooked impairment indicators in contravention of accounting standards. 8. Rajesh Kotian - CA No. 190 of 2019 - Statutory Auditors from 2008-09 to FY 2017-18 - Proposed Addl. Resp No. 326 - Para 62, Annexure 1, Vol 1, CA 190 of 2014 @ Pg 73 INDEPENDENT DIRECTORS 9. Surinder Singh Kohli - CA No. 214 of 2019 - Independent Director - Proposed Addl. Resp No. 328 - Para 66, Annexure 1, Vol 1, CA 190 of 2014 @ Pg 74 ....
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....nu Challu - CA No. 285 of 2019 - Independent Director - Proposed Addl. Resp No. 334 - Para 72, Annexure 1, Vol 1, CA 190 of 2014 @ Pg 77 OTHER IMPLEADED PARTIES 17. C. Sivasankaran - CA No. 230 of 2019 - Proposed Addl. Resp No. 331 - Para 69, Annexure 1, Vol 1, CA 190 of 2014 @ Pg 75 • C. Sivasankaran was chairman of Siva Group of Companies. • His companies borrowed money from the IFIN on several occasions. • Sivasankaran had personal relationship Ravi Prathasarthy and Hari Sansakaran (ex- director of IL&FS) • Management of IFIN abused their position by giving loans to Siva Group of companies as some companies of Siva Group had failed to repay their earlier loans granted to them by IFIN. • Wrongful loss ensued to IFIN as amount could not be recovered from Siva Group of the companies. • Wrongful gain caused to C. Sivasankaran as the lending was fraudulently approved in furtherance of connivance with C. Sivasankaran. 74. It is submitted that Section 143 of the Companies Act, 2013 provides for powers and duties of the audito....
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.... 6 Central Bank of India 7.67% 7 State Bank of India 6.42% 8 UTI- Unit Linked Insurance Plan - UTI Asset Management Company Limited 0.82% 9 India Discovery Fund 0.86% 10 Others 1.17% TOTAL 100% In addition to the above, the total subscribed and paid up capital of the 1st Respondent, presently is Rs. 983 Crores. 76.2. Although the equity shares of the IL&FS are not listed on any stock exchange, the secured non-convertible debentures as well as the non-convertible redeemable cumulative preference shares of the IL&FS are listed on the Bombay Stock Exchange. There are six major group companies of the 1st Respondent which contribute over 60% to the consolidated assets of the 'IL&FS Group'. A brief of the four major group companies is provided hereunder:- a) IL&FS Transportation Networks Limited (ITNL) ITNL, incorporated in the year 2000, has business activities ranging from developer, sponsor, construction manager and operator of surface transportation infrastructure, taking Greenfield Projects from conceptualization through commissioning to operations and management of such projects. The compa....
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.... (i) ITNL has been, in default on its debt obligations since June 30, 2018. (ii) The IL&FS itself has been in default on its debt obligations since August 25, 2018. (iii) IFIN, the key subsidiary of the IL&FS engaged in financial services, has been in default since September 12, 2018. This has led to the resignation of the Managing Director & CEO and four independent directors of IFIN on September 21, 2018. (iv) IEDCL, the IL&FS's power generation subsidiary, has defaulted on its payment obligations since August 22 2018. 76.4. Furthermore, the IL&FS has admitted that total debt across the IL&FS Group is approximately Rs. 91,000 crore as on March 31, 2018 and the IL&FS is contemplating monetizing of significant assets of the group companies for servicing the debts besides seeking further financial assistance from the institutional shareholders by way of a proposed rights issue. It is further submitted that the consolidated debt of the company increased to Rs. 91,091.3 crore in 2018 from Rs. 48,671.3 crore in 2014. Interest outgo rose to Rs. 7,922.8 crore from Rs. 3,970.7 crore during the same period. By 2018, the company has not even been making enough ....
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....ss to various stakeholders. 76.8. That in light of the above, it is stated that the IL&FS and Ors., being either members of the Board of Directors, Promoters, Auditors, etc. are privy to the inner working of their respective businesses, and as suchcannot evade responsibility for the fraudulent activities, misfeasance, persistent negligence and continuous defaults in carrying out their duties. Further, as a result of this fraudulent intent of such a huge magnitude, the entire stock market would be adversely affected which will have cascading impact not only on IL&FS but on the business sentiment in particular and economy in general and on the large section of common investors and creditors, etc. The siphoning of funds have been systematically carried out by way of excessive withdrawal of remuneration and otherwise which is apparent as under: No. Name of the Director Rs. in Million SGD Euro 1 Mr. Ravi Parthasarathi 3.66 - 1315.79 2 Hari Sankaran 4.24 - 2631.58 3 Arun K Saha 4.68 6000 5263.16 Further, the fraudulent intent has been so apparent that many of the directors realized that IL&FS along with its group compan....
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....amounts in a short period of time. Further, illiquid Corporate Debt Market and DHFL saga may force AMCs to sell Government Securities. Hence, Government Securities will face a huge selling pressure so either Bond Yield will shoot up to 8.30-8.50% levels or the RBI has to do OMO (Open Market Operations). If RBI Opts for OMO, then the Government's spending capacity will reduce by an equal amount. iii. NBFC licenses could be cancelled: In the wake of the IL&FS crisis, as many as 1,500 smaller NBFCs may have their licenses cancelled because these don't have adequate capital. iv. Liquidity crunch: A liquidity crunch and recent events hitting market sentiment will lead to cost of funds for NBFCs increasing, impacting profitability. v. Impact on debt market as reported by NSE: Bond yields had increased already on the back of Oil Price and Rupee depreciating, Government bonds had seen yields rising from 7.70 to 8.20 levels. Corporate bond yields had widened commensurately. However post IFSL announcement and downgrade, the Mutual Funds, who are the main buyers in Corporate Bonds, have completely stopped buying. RBI's liquidity inducing m....
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....of about 3-4 times. The indebtedness of the IL&FS at the end of Financial year 2017-18 is about 16468 crores and with debt market drying up for this company, it would be quite difficult to raise the fresh debt to service the existing debt or to do ever greening of debt. The leverage levels are quite elevated and need to be reduced to some, manageable levels, which require new thinking, and new management. ii. IFIN, a Subsidiary of IF&SL, is registered with the Reserve Bank of India (RBI) as a Systemically Important Non-Deposit Accepting Non-Banking Finance Company (NBFC-ND-SI). IFIN specializes in infrastructure financing transactions, with a unique combination of investment banking skill sets comprising of Debt Structuring and Distribution (DS&D), Corporate Advisory and Lending capabilities. IFIN has evolved as one stop solution provider for all the Funding, Debt raising and Advisory requirements of the clients. The RBI in its inspection reports required IFIN to consider exposures as per section 370 (1B) of the Companies Act, 1956 (now replaced with the Companies Act, 2013) for determining 'companies in the same group'. This impacts computation of Net Owned Funds....
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....ent framework and operational procedures developed for new businesses and products from time to time; b. provision of guidance on. strengthening of risk management practices to respond to emerging global and national market and regulatory developments; c. approval of overall limits for management of credit risk, liquidity risk and market risks; d. review of asset liability management reports and provision of directions on improved management of liquidity and interest rate risk; e. review of the capital adequacy requirements of the Company and provision of recommendations for the consideration of the Board in relation to the parameters to be considered in this regard; f. review of the Company's compliance programme; and g. review of the status of any enquiry, investigation and other disciplinary action initiated by RBI, SEBI or other regulatory agencies. Findings of this Appellate Tribunal: 77. As the matter is pending consideration before the Tribunal, we are not inclined to express any opinion whether the allegations made against one or other require further investigation and the order what is required to be passed in public inter....
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.... the Tribunal under Section 241 or Section 245. xxx xxx xxx 50. Therefore, on an application under subsection (2) of Section 241, the Tribunal can pass not only any order under Chapter XVI and if it is read with Section 246, it will be evident that Sections 339, 340 and 341 being applicable mutatis mutandis, in relation to an application made to the Tribunal under Section 241, the Tribunal can pass order in terms of those extended provisions. 51. This apart under Section 420, the Tribunal is empowered to pass such orders as it thinks fit after giving the parties to any proceeding before it, a reasonable opportunity of being heard. The Tribunal has also inherent powers to make such orders as may be necessary for meeting the ends of justice or to prevent abuse of the process of the Tribunal under Rule 11 of the NCLT Rules, 2016. 52. Therefore, if sub-section (4) of Section 242 is read with Sections 339 & 340 and Section 221, it is clear that apart from 'freezing of assets of company on inquiry and investigation', it is also open to the Tribunal to freeze the assets of any person, including other companies and individuals, even during inquiry and investig....
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....ort of the RBI Report can be taken note of, while upholding the order passed by the learned Tribunal under Section 130 of the Companies Act. As observed hereinabove, a larger public interest has been involved and reopening of the books of accounts and recasting of financial statements of the aforesaid companies is required to be carried out in the larger public interest, to find out the real truth, and as observed hereinabove both the conditions precedent while invoking power under Section 130 of the Companies Act are satisfied/complied with, therefore in the facts and circumstances of the case, we are of the opinion that the order passed by the learned Tribunal passed under Section 130 of the Companies Act, confirmed by the learned Appellate Tribunal, is not required to be interfered with." 81. The Hon'ble Supreme Court in unequivocal terms has held that the provisions of Sections 130, 212 and 241/242 operate conjointly so as to give full effect to the provisions of the Companies Act, 2013. 82. It is not necessary to discuss Section 140(5) of the Companies Act, 2013 for the present as the main issue is still pending consideration. The Ex- Auditors are to be removed or not is....
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....amination of witnesses or documents; (f) dismissing a representation for default or deciding it ex parte; (g) setting aside any order of dismissal of any representation for default or any order passed by it ex parte; and (h) any other matter which may be prescribed. (3) Any order made by the Tribunal or the Appellate Tribunal may be enforced by that Tribunal in the same manner as if it were a decree made by a court in a suit pending therein, and it shall be lawful for the Tribunal or the Appellate Tribunal to send for execution of its orders to the court within the local limits of whose jurisdiction,- (a)in the case of an order against a company, the registered office of the company is situate; or (b) in the case of an order against any other person, the person concerned voluntarily resides or carries on business or personally works for gain. (4) All proceedings before the Tribunal or the Appellate Tribunal shall be deemed to be judicial proceedings within the meaning of sections 193 and 228, and for the purposes of section 196 of the Indian Penal Code, and the Tribunal and the Appellate Tribunal shall be deemed to be civil cour....