2022 (5) TMI 992

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....unal vide order dated 17.12.2018 passed the liquidation of the Corporate Debtor and appointed him as liquidator in CP (IB)-195/ND/2017. Liquidator started performing his duty in order to comply with the directions of this adjudicating authority as per the provisions of IBC, 2016. During the liquidation process, liquidator filed an application under section 19(2) & 60(5) of IBC, 2016 seeking appropriate direction/order against the CD for extending cooperation and providing necessary information to the liquidator. During the hearing of the above-mentioned application this Bench directed the Liquidator to file a suitable application under the appropriate provisions of law before Tribunal to issue necessary directions. Hence, the Liquidator filed the application CA No. 434/C-III/2019 u/s. 210(2) and 213(b) of the Companies Act, 2013 before this Tribunal to direct the Central Government/Serious Fraud Investigation Office (SFIO) to investigate into the affairs of the CD. ii. The following are the instances that came to the knowledge of the Liquidator during Corporate Insolvency Resolution Process (CIRP) period & Liquidation which he believes to be investigated by the Central Gov....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....curred with the prior approval of the Resolution Professional and were not approved by the CoC in the budgeted CIRP costs. The CoC unanimously rejected the bills amounting to Rs. 1.13 lakhs. These facts indicate sceptical relations of the employees to M/s. Gallium Industries Ltd., M/s. Gallium Equipment Pvt. Ltd. & M/s. Gallium Engineering & Management Services Pvt. Ltd. c. Not supplied the proper information, documents & records to the forensic auditor to enable him to complete his assignment. Not supplied any information, documents & records as filed before the Hon'ble Tribunal as list of Questionnaires & documents to be answered and made available by the respondents. Claim received from Duferco during the liquidation proceedings also needs to be investigated for the reason that on posing some queries by the Liquidator pertaining to the verification of claim, Mr. Rajesh Meena (Respondent No. 1) mentioned that the information provided by Duferco in the claim is inappropriate/incorrect and he will provide point wise reply with appropriate and correct information. The Liquidator also raised some queries & clarification from the Duferco & as decided in the meeti....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....is similarly placed as respondent No. 4 who had also resigned much before initiation of CIRP. Respondent No. 5 name is wrongly and illegally included by Liquidator in the list of suspended Board to the very knowledge of the Liquidator. Liquidator in 2nd and 3rd meeting of the COC was clearly of the view that the names of Respondent No. 4 and 5 cannot be legally included in suspended Board. 7. Respondent No. 6 is ex-employee of corporate debtor and submitted that she has always cooperated with Liquidator/RP/IRP to the best and her ability and further submitted that after November 2011 the accounts and finance of the Corporate Debtor were being handled by other personnel of CD and she was merely assisting in miscellaneous statutory compliance, filing of returns, statutory audits etc. The respondent No. 6 had always worked under the instructions and directions of her immediate superior and the management of the Company and even when she was assisting in accounts, the requisition of any payment was always made by the concerned department like operation/manufacturing department which was approved by the concerned director/superior, only then the cheque/payment was made. Therefore, th....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....nd the applicant(s), whoever prefers application under Section 213, whether they belong to category as mentioned in clause (a) or clause (b), such evidence is required to be relied upon not only to justify the allegations, but also to show that there is good reason for seeking an order, to enable the Tribunal to form its opinion." Accordingly, it is submitted by him that there is no reason and evidence placed on record in support of the false and frivolous allegation made, to even prima-facie form an opinion whether it is a case for investigation by the SFIO or not. 11. The respondent No. 4 also filed its written submission and reiterated all the arguments and case laws already discussed above, therefore, not repeated again. 12. The said respondent has cited order of the Principal Bench of the adjudicating authority in Manmohan Malik vs. Simplot India Foods Pvt. Ltd. [Company Petition No. 78(ND)/2017 (Decided on 20.07.2017)] while rejecting an application for investigation into the affairs of a company under Section 213 held that a prima facie case must be established by the Applicant for the appointment of an investigator. The Adjudicating Authority relying on the judgmen....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....e Central Government" indicate (hat the opinion must be formed by the Central Government and it is of course implicit that the opinion must be an honest opinion. The next requirement is that "there are circumstances suggesting etc." These words indicate that before the Central Government forms its opinion it must have before it circumstances suggesting certain inferences. These inferences are of many kinds and it will be useful to make a mention of them here in a tabular form:- ---- 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 conclusions of certain definiteness. The conclusions must relate to 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 ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....conduct towards the company or towards any of its members; or (iii) the members of the company have not been given all the information with respect to its affairs which they might reasonably expect, including information relating to the calculation of the commission payable to a managing or other director, or the manager, of the company, order, after giving a reasonable opportunity of being heard to the parties concerned, that the affairs of the company ought to be investigated by an inspector or inspectors appointed by the Central Government and where such an order is passed, the Central Government shall appoint one or more competent persons as inspectors to investigate into the affairs of the company in respect of such matters and to report thereupon to it in such manner as the Central Government may direct: 14. As per the scheme of 213(b) of the Companies Act, 2013, there are three instances in which this Tribunal can refer the matter to Central Government for investigation into the matter of affairs of the company. We have carefully analysed the instances on the basis of which the applicant wants this Tribunal to refer the matter for investigation. We have ....