TaxTMI 
TaxTMI 
TaxTMI 
2025 (11) TMI 1644
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....idator [OL], as well as by Mr. Rishi Awasthi, learned counsel appearing on behalf of the Ex-Management of the Respondent Company. 3. Learned Counsels appearing for the Respondent have not opposed the present Application. 4. For the sufficient reasons stated in the application and the fact that the same is not opposed by the learned Counsels for the Respondents, the delay is condoned. 5. Accordingly, the present application stands disposed of. CM APPL. 51382/2024 (for condonation of delay of 48 days in re-filing appeal) 6. By way of the present application filed under Section 5 of the Limitation Act, 1963, the Applicant/Appellant seeks condonation of the delay of 48 days in re-filing the present appeal. 7. For the sufficient reasons stated in the application and the fact that the same is not opposed by the learned Counsels for the Respondents, the delay is condoned. 8. Accordingly, the present application stands disposed of. CO.APP. 23/2024 & CM APPL. 51379/2024 (for stay) 9. The instant Appeal has been filed against the Judgment dated 23.04.2024, passed by the learned Single Judge of this Court in Company Application 406/2024 (For clarification of order d....
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....investigate the Affairs of the company (In Provo Liqn) and submit its report to this Hon'ble Court within a time bound manner." 2. The report of the Official Liquidator is taken on record. 3. Mr. Mayank Goel, learned counsel appearing on behalf of the Official Liquidator has drawn attention of this Court to the order dated 08.02.2016 passed by this Court, by way of which, inter alia, the Official Liquidator attached to this Court was appointed as Provisional Liquidator for the company in liquidation. The same is reproduced hereinunder:- "1. These are petitions filed under Section 433 of the Companies Act. It appears that criminal proceedings are also taken out against the respondent company and its Managing Director, Mr. Sanjeev Shrivastava. In this regard, FIR 121/2015 under Section 406,420 and 120B of the IPC was registered with EOW, Delhi. 1.1 Qua registration of FIR, proceedings were taken out against Mr. Sanjeev Shrivastava and others under Section 482 of the Cr.PC alongwith Article 226 of the Constitution. 1.2 The said proceedings were disposed of, vide order dated 04.11.2015. The said order is pivoted on the fact that during t....
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....zette, as well. 3.4 The respondent company and its Directors, agents and servants are injuncted from transferring, selling or creating any third party interest in its assets. 3.5 The OL will seal the premises in which the assets, books of accounts, documents and other records of the respondent company are stored after preparing an inventory in that behalf. 3.6 The Directors will file the statement of affairs of the respondent company within 21 days from today. The Directors will also appear before the OL, on 01.03.2016, at 11.00 a.m. for recording of their statement under Rule 130 of the Companies (Court) Rules, 1959. 3.7 The OL will also have the assets of the respondent company valued and, accordingly, place the valuation report so generated, before this court. 3.8 The Directors of the respondent company will also file an affidavit with the OL, setting out the details and the location of the assets, which would include the immovable and movable properties, details of the debtors and creditors, as also the location of all the offices and/or place of business of the respondent company. 3.9 In case police assistance is required, ....
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....hat on 20.10.2016, oral directions have been issued by the Hon'ble Division Bench to the counsel appearing on behalf of the Official Liquidator, to not proceed further qua liquidation of the respondent-company, till the decision in the said Company Appeal No.17/2016. However, a perusal of the order dated 20.10.2016, in the said Company Appeal No.17/2016 does not indicate any such direction having been issued. 10. A perusal of the communication dated 14.10.2016, received from Mr. Manoj Srivastava, Ex-Director of the company in liquidation, in reply to the notice dated 16.09.2016 under Rule 130 of the Companies (Court) Rules, 1959 clearly manifest that, inter alia, the following acts were committed by the Ex-Management of the company in liquidation, which are prima facie in violation of the said order dated 08.02.2016: (i) The company in liquidation holds 100% shareholdings of M/s Lindex Impex Private Limited and vide agreement dated 21.03.2016 the shareholdings of M/s Lindex Impex Private Limited have been sold to Mr. Joydeep Nayar, Mr. Parmjit Gandhi and M/s Khyati Buildtech Private Limited with 33.33% shareholding each. (ii) Payments have been made to th....
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....ction was issued to submit a final report, which the SFIO duly submitted on 04.04.2024. In this regard, the learned Single Judge, vide Order dated 04.04.2024, directed as under: "6. At this stage, Learned counsel for the SFIO appears and he submits that he is placing its report in a sealed cover in terms of directions of this Court dated 06.07.2023. Let the report be kept on the record and be reserved till further order. 7. In the meanwhile, the SFIO shall proceed as per law." 16. Thereafter, on Co. Appl. 406/2024 (For clarification of order dated 04.04.2014) filed by the Ex-Management of the Respondent Company, the learned Single Judge, in the company petition, passed the Impugned Order dated 23.04.2024, which reads as under: "CO.APPL. 406/2024 (For clarification of order dated 04.04.2014) 1. This application has been moved on behalf of the applicant/Ex-Management seeking certain clarifications and directions against the SFIO in terms of the previous directions of this Court dated 04.04.2024. 2. Mr. Sudhir Nandrajog, learned Senior Counsel has alluded to the order dated 08.11.2016, whereby this Court had made the following observatio....
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....e that this Court may first have a look into the report submitted by the SFIO and before a decision is taken on merits of the same, the SFIO may not launch any prosecution against the Ex-Management till such time. 5. Learned counsel for the SFIO has objected to any orders enabling the ex-management to have access to the SFIO report. 6. Considering that the completion of the projects is underway at the site at the instance of the ex-management, and although some aspects of the tasks performed by the Court Commissioner also have to be look into, and considering the stakes of the homebuyers, any prosecution of the directors/ex-management might impair the progress and completion of the projects. 7. Hence, it is clarified that this Court vide order dated 04.04.2024 has not granted liberty to the SFIO to launch any prosecution against the Ex.-Management de hor the provisions of the Companies Act, 2013. The SFIO shall refrain from launching any prosecution against the Ex-Management/directors of the company in liquidation till such time this Court considers the report filed by the SFIO and passes appropriate directions thereupon. 8. Re-notify on the date....
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....its that the consistent intent of this Court was merely to direct the Appellant to conduct an investigation and submit its report before the Court. 25. He further relies upon the Order dated 04.04.2024 and, in particular paragraphs 6 and 7 thereof, to contend that the intent evidenced by the original Order directing investigation was continued by this Court directing that the report of the Appellant/SFIO was to be taken on record and kept in abeyance until further orders. 26. Learned counsel for the Respondent would thereafter conclude by submitting that the Impugned Order, when read in conjunction with the Orders dated 08.11.2016 and 04.04.2024, reflects a consistent judicial intent to maintain oversight and control over the post-investigation process and there is, resultantly, no error in the Order, and no requirement of any interference by this Court. ANALYSIS: 27. We have heard the learned counsel appearing for the parties and have meticulously perused the Appeal along with the documents placed on record. 28. We are afraid that we cannot agree with the contentions of the learned Senior Counsel for the Ex-management of the Respondent Company. Accepting this conten....
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.... the investigating officer submits report to the court requesting the court to take cognizance of the offence under Section 190 of the Code its duty comes to an end. On a cognizance of the offence being taken by the court the police function of investigation comes to an end subject to the provision contained in Section 173(8), there commences the adjudicatory function of the judiciary to determine whether an offence has been committed and if so, whether by the person or persons charged with the crime by the police in its report to the court, and to award adequate punishment according to law for the offence proved to the satisfaction of the court. There is thus a well defined and well demarcated function in the field of crime detection and its subsequent adjudication between the police and the Magistrate. This had been recognised way back in King Emperor v. Khwaja Nazir Ahmad [AIR 1944 PC 18 : 1944 LR 71 IA 203, 213] where the Privy Council observed as under: "In India, as has been shown, there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities and it wo....
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....ecution which may follow must be in consonance with the statutory framework. 37. The second part of the afore-noted paragraph 7 of the Impugned Order interdicts the very same procedure and reads as follows: "....... The SFIO shall refrain from launching any prosecution against the Ex-Management/directors of the company in liquidation till such time this Court considers the report filed by the SFIO and passes appropriate directions thereupon." 38. Clearly, the said direction is not only against the statutory provisions, but prescribes an additional condition for initiating any prosecution, by making the launch of prosecution, subject to scrutiny by the Courts. As already held hereinbefore, the natural consequences as mandated by the statute would have to follow and the Courts cannot, by judicial orders, divert the course of the statutory stream or ascribe to themselves a power or function that is neither prescribed nor provided for by the Statute. 39. It is undisputed by the learned Senior Counsel for the Ex-Management of the Respondent Company that there is no express statutory provision or binding precedent that permits an interdiction of the natural consequences....
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....own in Section 164. The power to record the confession had obviously been given so that the confession might be proved by the record of it made in the manner laid down. If proof of the confession by other means was permissible, the whole provision of Section 164 including the safeguards contained in it for the protection of accused persons would be rendered nugatory. The section, therefore, by conferring on Magistrates the power to record statements or confessions, by necessary implication, prohibited a Magistrate from giving oral evidence of the statements or confessions made to him."" (emphasis supplied) 42. Further, a Constitution Bench of the Hon'ble Supreme Court in Public Interest Foundation v. Union of India (2019) 3 SCC 224, reaffirmed this principle while referring to its earlier precedents. The Apex Court observed as under: "99. In D.R. Venkatachalam v. Transport Commr., (1977) 2 SCC 273, it was observed: (SCC p. 282, para 17) "17. In ultimate analysis, the rule of construction relied upon by Mr Chitale to make the last mentioned submission is: 'Expressio unius est exclusio alterius.' This maxim, which has been described as 'a valuable servan....