TaxTMI 
TaxTMI 
2021 (6) TMI 345
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....are relevant to the issue in question, are as follows: (1) M/s. India Awake for Transparency (hereinafter referred to as Applicant/Petitioner), is a Non Profit Company, bearing CIN: U93000TN2012NPL087115, registered under Section 25 of the Companies Act, 1956 corresponding to Sec. 8 of the Companies Act, 2013. The Company is primarily focused on working in areas of governance and efficient resource management, whether in the public or private sphere. Also focuses on mis-governance in the private and corporate sector especially in matters where the same has impact on larger public and/or the exchequer. (2) M/s. Hasham Investment and Trading Company Private Limited (hereinafter referred as Respondent No. 1/Company), is a Private Limited Company was incorporated on 10.5.1983 and that as on 31.3.2013 the R-1 Company had a Authorized Share Capital is Rs. 115,150,000/- and Paid-up Capital of Rs. 4.01 Crores and had accumulated losses of Rs. 146.62 Crores. It is involved in activities auxiliary to financial intermediation, except insurance and pension funding. The said losses entirely wiped out its Capital and free reserves many times over. The R-1 had made losses of Rs.....
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..... The 3 Companies were at all times carrying on business as Non Banking Finance Companies and were registered with Reserve Bank of India (RBI) as per the requirements under the RBI Act. The said 3 Companies were barred from being partners of any firms since 2011 by RBI regulations. (6) In 2013-14 false records were created by R-1 that the 3 Companies had become its subsidiaries as though by virtue of right of appointment of Board of Directors of the said 3 Companies being vested with the R-1. After the removal of Rs. 20207 Crores from the 3 Companies by way of gifts to 2nd and 3rd Respondents Private Trust the 3 Companies had a collective worth of Rs. 31,342 Crores, which was reduced from Rs. 51,549 Crores previously by the gifts above set out. The 2nd to 4th Respondent not satisfied with defrauding the Union of India of the Rs. 20207 Crores taken away as Gifts now decided to merge the 3 Companies whose entire assets were properties vested with the Union of India with the loss making R-1. (7) Though the manner in which the merger was got effected in fraud and in violation of statute is the subject matter of the above referred CA's the very object of the merger....
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....with RBI and as such the entire conduct of business is for fraudulent and unlawful purpose. The 3 Companies are carrying on principal business of NBFC without registration with RBI, which is mandatory in law. The provisions of Sec. 213(b)(i)- (iii) of Act 2013 are pari materia to that of Sec. 237(b)(i)-(iii) of Act 1956 and as such whether the matters in respect of which the need for investigation arises are events occurring prior to the coming into force of Sec 213 of Act 2013 are not germane as the same would then have been bound to be investigated under Sec 237 of the Act 1956. (10) The Applicant states for the sake of completeness of disclosure that it has filed/is filing certain complaints before Courts of competent jurisdiction in respect of offences U/S. 447 and 448 of the Act punishable under Sec 447 of the Act 2013 in respect of some of the matters hereinabove set out where such matters are not covered by the bar U/S. 439(2) of the Act 2013. Such complaints as and when filed are not a bar on the reliefs sought as such complaints being based only on the publicly available records may not cover the full scope of actions that would arise after investigation. 3. Th....
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....ror Companies. The scope of Section 213 of the Act does not permit ordering an investigation into matters that are previously disclosed and well known. (4) The 3 Companies were never wound up. They were only amalgamated with the R-1 Company pursuant to an order of the Hon'ble High Court of Karnataka. The Amalgamation of the said 3 Companies with the R-1 Company is U/s. 391 to 394 of the Companies Act, 1956 and there was no winding up at all of the said 3 Companies. The Petition alleges that the properties owned by 3 Companies were escheat property in terms of Article 296 of the Constitution of India. But the Petition does not state as to when the transfer of ownership of the said properties had occurred and whether the Union of India anytime has declared the properties to be belonging to it. The Petition conveniently overlooks the fact that Article 296 is not applicable at all as each of the 3 Companies had separate legal existence until they were amalgamated with the R-1 Company. The 3 Companies were regular in filing the statutory returns with the Registrar of Companies (ROC). The Hon'ble High Court of Karnataka before sanctioning the Scheme had received the repo....
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....after, the Petitioner approached the NCLAT with an appeal against the order of this Hon'ble Tribunal and the same came to be dismissed by the NCLAT vide its order dated 07/02/2018 with an exemplary cost of Rs. 2 Lakhs which is unpaid till date. (9) The transactions referred in the Petition are reported, time to time, to regulators such as SEBI, RBI, ROC, Income tax Department, Stock exchanges and disseminated to public at large through press releases and in public deliberations. The Respondents regularly engage with Government and government agencies, file its statutory returns, documents and declarations, and discharge their statutory dues as required by laws and regulations. The entire pleadings in the Petition are to challenge the Amalgamation of Napean, Regal and Vidya with Hasham Investment and Trading Company Private Limited ("Hasham"), the 1st Respondent. The Scheme came to be approved by the Hon'ble High Court of Karnataka vide Order dated 26.03.2015 in COP 182, 183, 184 & 185/2014. (10) The Petitioner has no locus-standi to invoke the provisions of Section 213(b) and 221 of the Act. It is not a Member/Creditor/Depositor of the R-1 Company. The Pet....
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....ved by the affairs of the 1st Respondent Company, the present Petition deserves to be rejected on the grounds of maintainability with cost imposed. They have relied on following judgment: a. Ashok Kumar Pandey v. State of West Bengal [ (2004) 3 SCC 349] b. Attorney General vs. Prince Ernest Augustus of Hanover (1957) AC 436 at 461 c. Western Coalfields Ltd. vs. Special Area Development Authority AIR 1982 SC 697. 4. The Petitioner has also filed Rejoinder to the Statement of Objections filed by the Respondent No. 1, 4 & 5 dated 10.09.2019, more or less repeating the averments made in the main Petition and some of main contentions are as follows: (1) The provisions of Companies Act, 2013 are clear that investigation can be ordered by Tribunal on Application by any other person or even suo moto. It is settled in law that in respect of any act which the Court can do suo moto itself there is no requirement of locus of any Applicant who seek Court's action in such matter and as such no question of locus will arise in such matter even de hors any meaning sought to be given to the term "any other person". (2) There are so many acts of vio....
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.... the court to read the Section in such manner as to render it somewhat otiose", (3) The Applicant states that the Apex Court has at para 16 in decision reported as 1979 SCC (3) 54 held in respect of the Companies Act, 1956 as under: "If the Court can suo moto act, it is immaterial as to who drew the attention of the Court to a situation which necessitated Court's intervention. Where the power is conferred on the Court to take action on its own motion the information emanating from whatever source which calls for Court's attention can as well be obtained from any person without questioning his credentials, moving an application drawing attention of the Court to a situation where it must act". (4) The Respondent have sought to rely on the decision of NCLAT dated 23.12.2016 in the matter of RS Wind Energy P Ltd. Vs. PTC India Financial Services Ltd. & Ors.Company Appeal (AT) No. 15 of 2016 relying upon the observations of NCLAT in para 46A (b) therein which reads as under: "(ii) any other person who may include an individual whoever is aggrieved including a member who otherwise do not come within clause (a) i and (a) ii above, the creditors, deposito....
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....l No. 2050 of 2010 arising out of SLP (C) No. 15458 of 2007) has examined and explained the meaning of 'Ejusdem Generis' as a rule of interpretation of statutes in our legal system. (3) The Respondents relies on an order passed by the National Company Law Appellate Tribunal in (R.S. India Wind Energy Private Limited Vs. PTC India Financial Services Ltd. & Ors.), wherein the Appellate Tribunal has laid down strict parameters/guidelines pertaining to Application made U/s. 213 of the Companies Act, 2013. (4) The 1st Respondent Company, is a closely held Private Company, and as such it does not involve any 'public finds" nor does it attract any 'public interest' as alleged by the Applicants. Further, Black Law's Dictionary defines "public interest" as: "Public Interest: Something in which the public, the community at large, has so pecuniary interest, or some interest by which their legal rights or liabilities are affected. It does not mean anything so narrows mere curiosity, or as the interests of the particular localities, which may be affected by the matters in question. Interest shared by citizens generally in affairs of local, sta....
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....standi to file the instant Petition. And the Petitioner failed to make out any prima facie case to entertain the instant Petition and it is making futile attempt to order roving enquiry basing on baseless and un-tenable allegations. 10. The Petitioner has unsuccessfully initiated various proceedings before various Courts including Hon'ble High Court of Karnataka and Hon'ble Supreme Court of India, against the Respondents herein. The Petitioner has filed the following cases, before the Hon'ble High Court of Karnataka and also other Criminal Courts. 1) W.P. No. 3635/2020 (GM-RES-PIL) filed before the Hon'ble High Court of Karnataka by the Petitioner: The said Writ Petition is unconditionally withdrawn by the Petitioner. 2) W.P. No. 13838/2020 before the Hon'ble High Court of Karnataka filed by the Petitioner against SEBI and others for investigation against the Respondents and others: The said Writ Petition was dismissed vide Order dated 8.1.2021. 3) W.P. No. 11482/2020 before the Hon'ble High Court of Karnataka filed by the Petitioner against the Respondents and others setting aside the order dated 28.7.2020 passed by the 41st Ad....
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.... with regard to maintainability of Writ Petitions. In substance, the preliminary objection is, Petitioner has filed a public interest litigation registered as W.P. No. 3635/2020 with a prayer inter alia for issuance of a writ of mandamus and to direct Respondents No. 1 to 10 therein to constitute a multi-disciplinary investigation team to investigate and prosecute Mr. A.H. Premji (Respondent No. 11 therein) and his associates for the offences alleged to have been committed by them, set out in Petitioner's representations submitted to Respondents No. 1 to 6 therein. The Ministry of Corporate Affairs against whom a direction is sought in this writ Petition was arrayed as Respondent No. 2 in the said PIL. Petitioner has unconditionally withdrawn the PIL. Thereafter, it has filed five separate Writ Petitions against various statutory authorities. W.P. No. 13838/2020 is against SEBI, W.P. No. 12073/2020 is against Enforcement Directorate, W.P. No. 11482/2020 is against Reserve Bank of India (RBI). All three Writ Petitions have been dismissed. 2) Shri Nagesh further submitted that Petitioner - Company is no more in existence pursuant to orders passed by the Regional Director....
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....t as to when the alleged offences have taken place, Shri Subramanian replied that they have taken place between 2010 and 2016-17. 9) Prayer Clause (a) in this writ petition is for a mandamus against Ministry of Corporate Affairs to act on the information in its representation/complaint dated March 14, 2017, January 30, 2020 and November 9, 2020 furnished by the petitioner. 10) In paragraph No. 1 of its complaint dated March 14, 2017, petitioner has stated that three Companies namely Vidya Investment and Trading Company Pvt. Ltd., Regal Investment and Trading Company Pvt. Ltd., and Napean Trading and Investment Company Pvt. Ltd., have net worth in excess of Rs. 40,000 Crores even though their Capital was small. 11) In paragraph No. 5 of its complaint dated January 30, 2020, petitioner has stated that the said three Companies together with 100% owned subsidiaries are worth Rs. 50,000 Crores; that the three Companies were set out as part of promoter group of Wipro Ltd.; and neither Mr. Azim Premji or his family members had any equity in these Companies. 12) In paragraph No. 1 of its complaint dated November 9, 2020, petitioner has stated that the en....
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....se to argue this writ petition as a standalone petition wasting the valuable time of this Court to deal with such frivolous cases. Therefore, imposition of punitive cost is necessary. 18) In view of the above, the preliminary objection raised by Shri. S. Ganesh and Shri. C.V. Nagesh are sustained and this writ petition is DISMISSED with cost of Rs. 10,00,000/- (Rupees Ten lakhs) payable by petitioner to the Registrar General, High Court of Karnataka, Bengaluru within four weeks from today". 12. Aggrieved by the Order in the said Writ Petition, the Petitioner has preferred Writ Appeal No. 307/2021 (GM-RES). The Writ Appeal was also dismissed by an Order dated 25.3.2021, by upholding the said order. 13. It is relevant to advert the findings of the Hon'ble High court of Karnataka in its orders dated 17th March, 2021 passed in Company Application No. 185 of 20215 in Company Petition No. 182 of 2014 are as follows: i. "The claim of the Applicant in the present Application with regard to the impugned order sanctioning the scheme of amalgamation has already been urged by the Applicant before the Delhi High Court in W.P. No. 4905/2017 and connected matters filed....
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....he is now appearing as an advocate and Sri. P. Sadanand is the authorized signatory and there is no impediment for him to represent for the appellant/Company. 2) In this context, learned Senior Counsel Sri Ganesh submitted that the appeal is not properly filed in as much as the affidavit verifying the contents of memorandum of appeal by Sri. P. Sadanand who is stated to be a "volunteer of the appellant" is something which is unknown in law. It was contended that under Section 21 of the Companies Act, 2013, only am authorized signatory of the Company who is authorized by a Resolution of the Board can sign or be authorized to sign and verify the proceedings including filing of the pleadings, etc., before the Court of law. That is the instant case, as already submitted there are no Board of Directors as all Directors have ceased to exist in the appellant/Company which is, in any case, a non-entity in view of the proceedings referred to above. 3) We find considerable force in the submission of learned Senior Counsel in as much as when a Company is seeking to file an appeal or a proceeding, then the Board of Directors of the Company has to authorize a person who would ....
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.... the Union of India, dated 10.11.2017, a litigative mechanism has been devised to indirectly question the said order by way of seeking recall of the order dated 26.3.2015 passed by the learned Company Judge of this Court sanctioning the amalgamation of the three Companies with respondent no. 1 this is without having any locus standi to do so. 6) But having regard to the checkered history with regard to this controversy, we refrain the appellant herein, India Awake for Transparency, from filing any proceeding with regard to the amalgamation of the three companies with respondent No. 1 herein in future before any Court or authority or forum. We have constrained to pass such an order having regard to the loss of precious public time of this Court and other Courts by taking up such a controversy by the appellant Company, without having any locus standi to do so. The same is an instance of gross abuse of the process of law as well as of this Court". 15. Even genuine aggrieved party can approach Court of law as last resort after exhausting all alternative remedies available under statute. However, in the instant case, though the Petitioner has no locus standi even to raise th....