Mahak Vyapaar P. Ltd. vs Registrar of Companies, Ministry of Corporate Affairs

Ashim Kumar Banerjee, J.—The appellant filed an application before the learned single judge proposing a scheme of amalgamation with Magic Tradelink P. Ltd. and Moonlite Technochem P. Ltd., both having registered office at New Delhi. We were told, the Delhi High Court already directed meetings to be held to ascertain the wishes of the shareholders. The application before this court was on behalf of the first transferor company who would intend to amalgamate itself with Moonlite. The learned judge initially directed the Registrar of Companies to conduct an investigation and file a report. Accordingly, the Registrar filed a report on April 3, 2012. The report would reveal, the company had issued share premium to large number of companies mostly private companies on the same day and used funds for investments to a small extent and made advances to others. There were crores of investments involving a large number of private companies. His Lordship directed the Director, Revenue Intelligence to conduct an enquiry as to whether there was any money trail. The company preferred an appeal. On August 8, 2012 we disposed of the appeal by observing, "in case his Lordship would pass any order on the basis of the report his Lordship should give opportunity to the appellant to deal with the same before any order was passed against them". On August 31, 2012, his Lordship expressed displeasure as the Director, Revenue Intelligence did not carry out the order of this court. His Lordship directed the Ministry of Corporate Affairs to do so. Accordingly, the Ministry of Corporate Affairs asked the SFIO to conduct such investigation. SFIO submitted a report, inter alia, pointing out irregularity in the affairs of the company. The matter came up before his Lordship on March 21, 2013, when the said report was placed. His Lordship directed the reports to be kept in safe custody. The company preferred an appeal. We did not intervene at the initial stage and directed paper book to be filed. His Lordship passed subsequent orders on April 26, 2013 and May 10, 2013. By the order dated April 26, 2013, his Lordship directed the Regional Director to indicate the steps to be taken in terms of the report. By the order dated May 10, 2013, the Reserve Bank of India was asked to submit a preliminary report. The Reserve Bank submitted a preliminary report observing "the company may have carried on business of non-banking financial company without any registration". His Lordship passed an order on May 16, 2013, directing the Reserve Bank of India to take further steps in the matter and directed the matter to appear on June 4, 2013. The company preferred four appeals against the orders dated February 11, 2013; March 21, 2013; April 26, 2013 and May 10, 2013. We heard all the four appeals on the abovementioned dates and intend to dispose of the same by this common judgment and order.

From the backdrop as discussed above, it would be clear, we did not interfere with the exercise that his Lordship undertook to conduct an investigation into the affairs of the company that raised doubt in the mind of his Lordship. The present four appeals would relate to further orders passed from time to time by his Lordship. At the instance of his Lordship, the Central Government engaged Serious Fraud Investigation Office (hereinafter referred to as "SFIO") who submitted a detailed report. His Lordship thereafter directed the Reserve Bank of India to carry on an investigation. The Reserve Bank of India submitted a preliminary report observing, "the company may have carried on business as a non-banking financial company without obtaining registration with the Reserve Bank of India or complying with the other conditions set by the Reserve Bank of India for non-banking financial companies". His Lordship directed appropriate steps to be taken by the Reserve Bank of India. His Lordship placed the matter for further hearing on June 4, 2013.

The appellant would now contend, the learned judge, despite the restrictions being imposed by the Division Bench in A.P.O. No. 424 of 2012 continued to carry on roving enquiry that would be an unending process.

Mr. S.B. Mookherjee, learned senior counsel appearing for the appellant would contend, the learned judge should either allow his petition for holding meetings of the shareholders to ascertain their wishes or dismiss it if his Lordship would otherwise deem fit and proper, so that the appellant could take further steps in the matter. His Lordship, without deciding the issue for which the appellant approached the court, would not be competent to postpone this issue for eternity and that too, by directing investigation that would be in excess of the power conferred upon his Lordship by the appropriate laws of the land. Mr. Mookherjee was critical about the series of orders that his Lordship passed from time to time. Commenting on the report, Mr. Mookherjee would contend, SFIO submitted its report observing, "chartered accountant did not sign the balance-sheet". According to him, the chartered accountant used his digital signature. In any event, the company could not get any opportunity to cross-examine him, in fact, sufficient opportunity was not given to the company to offer explanation on the issue.

Mr. Mookherjee would rely upon rules 67 and 69 of the Companies (Court) Rules, 1959, to contend, the learned judge exceeded jurisdiction that was conferred upon his Lordship while issuing such directions one after the other. As and by way of alternative submission, Mr. Mookherjee would contend, even if his Lordship had power u/s 237, such power would only be restricted to make a declaration pointing out the irregularity leaving it open to the Central Government to consider whether appropriate investigation would be necessary or not. The learned judge could not decide which agency should carry on investigation and the direction issued directly to such agency was in excess of jurisdiction conferred upon the company court. He would rely upon the assessment order under the income tax Act, 1961, appearing at pages 298-299 of the paper book to contend, the company duly paid tax that was assessed by the appropriate authority under the income tax Act.

Mr. Mookherjee would rely upon the following decisions:

(1 Rainbow Denim Ltd. Vs. Rama Petrochemicals Ltd.,

(2) Chembra Orchard Produce Ltd. and Others Vs. Regional Director of Company Affairs and Another,

(3) In Re: Bangeswari Cotton Mills Ltd.,

(4) In Re: W.A. Beardsell and Co. (P.) Ltd. and Mettur Industries Ltd.

(5) [1961] 3 All ER 1169(PC) (Macfoy v. United Africa Co. Ltd.);

(6) Dagadu Vs. State of Maharashtra, and

(7) Dale and Carrington Invt. (P) Ltd. and Another Vs. P.K. Prathapan and Others,

Mr. Mookherjee raised the issue of bias by contending his Lordship allowed at least three petitions in the matters of Pincha Home Builders P. Ltd., Lucknow Properties and Finance P. Ltd. and Vanilla Goods that would involve similar circumstance. Relying on paragraph 49 of the apex court decision in the case of Dagadu Vs. State of Maharashtra, , Mr. Mookherjee would contend, a series of orders passed from time to time with the solitary goal to harass the applicant-company would expressly manifest the bias. In the said decision the apex court observed (page 780 of 51 Comp Cas): "The true position is that an isolated act, which is contrary to law, may not necessarily and by itself support the inference that the law was violated with a mala fide intention or that such violation was burdensome, harsh and wrongful. But a series of illegal acts following upon one another can, in the context, lead justifiably to the conclusion that they are a part of the same transaction, of which the object is to cause or commit the oppression of persons against whom those acts are directed". He would also rely upon the English decision Macfoy v. United Africa Co. Ltd. [1961] 3 All ER 1169(PC) where Lord Denning observed (page 1172): "You cannot put something on nothing and expect it to stay there". Mr. Mookherjee would contend, the learned judge did not have the competence at all to direct a particular agency to conduct the investigation. Even if any investigation was carried out same would be of no consequence as it would have no legal sanctity. Mr. Mookherjee would rely upon the apex court decision in Dale and Carrington Invt. (P) Ltd. and Another Vs. P.K. Prathapan and Others, to contend, an order would be perverse if it had no support from the evidence. Mr. Mookherjee cited the apex court decision in the case of Rainbow Denim Ltd. Vs. Rama Petrochemicals Ltd., and Chembra Orchard Produce Ltd. and Others Vs. Regional Director of Company Affairs and Another, to find out the scope of section 391, to contend, the learned judge exceeded in his jurisdiction to direct investigation, that too, by specified agency. The other two decisions in the case of In Re: Bangeswari Cotton Mills Ltd., and In Re: W.A. Beardsell and Co. (P.) Ltd. and Mettur Industries Ltd. , were cited to find out the scope of rules 67 and 69 where the learned company judge of this court and of the Madras High Court both observed, notice to the Central Government was not at all necessary at the initial stage. Mr. Mookherjee prayed for setting aside of the earlier orders and the consequential reports submitted by various agencies referred to above and direction for holding of meetings of the shareholders to ascertain their wishes.

Opposing the appeal, Mr. Bhaskar Prasad Banerjee, learned counsel would contend, section 394A would enable the court to issue notice on the Central Government. u/s 391 it would be in the sole discretion of the learned judge whether such notice would be given at the initial stage or at the final stage. Mr. Banerjee would further contend, the Registrar of Companies had the expertise to carry on such investigation. The learned judge did not commit any illegality directing such authority to carry on investigation to remove the doubt in his mind. Mr. Banerjee placed the affidavit filed by the Regional Director wherein the Regional Director clearly observed, one of the companies was used as a conduit for money laundering that would attract serious steps as against the persons being in the management and control of the company.

We have considered the rival contentions. Section 391 imposed wide discretion upon the learned judge. The learned judge expressed doubt as to the function of the company. Such doubt ultimately came true as we find from the reports particularly of the SFIO. Hence, before the company was permitted to go ahead with the scheme, the court was duty bound to remove doubt if any, in its mind as to whether such scheme was being propounded for an oblique purpose. The court was not a mere rubber stamp as observed by the Bombay High Court in the case of Bedrock Ltd. (In the matter of Scheme of Compromise/Arrangement between the Creditors of Bedrock Ltd. and Bedrock Ltd.), . The Bombay High Court would observe (page 361 of 101 Comp Cas): "For ascertaining the real purpose underlying the scheme with a view to be satisfied on this aspect, the court, if necessary, can pierce the veil of apparent corporate purpose underlying the scheme and can judiciously X-ray the same". The Bombay High Court went further to comment (page 370 of 101 Comp Cas): "The court does not function as a rubber stamp or post office". We are in full agreement with such observation. We did not interfere at the initial stage. However in A.P.O. No. 424 of 2012 (since reported in Bhagyraaj Vyapaar Private Limited and Others Vs. Regional Director, Ministry of Corporate Affairs, Eastern Region Kolkata, ), we observed, the Central Government would be free to choose the agency through whom they would carry on investigation and would be free to take any step as may be found appropriate. We categorically observed (page 14): "The direction for continuation of such investigation must be treated as a declaration u/s 237(a)(ii) of the Act and not a mandate upon the Central Government...."

In a matter of like nature Bhagyraaj Vyapaar Private Limited and Others Vs. Regional Director, Ministry of Corporate Affairs, Eastern Region Kolkata, ). His Lordship directed similar investigations to be carried out. We observed as follows (page 14):

The judgment and order impugned is affirmed with the following modifications:

(i) The cost of rupees seventeen thousand would be paid within two weeks from date. Rupees eight thousand five hundred should be paid to the Central Government whereas the balance sum of rupees eight thousand five hundred be paid to the State Legal Service Authority, West Bengal.

(ii) The order of restraint passed by his Lordship restraining the appellants from moving an identical application for five years, is set aside. The appellants would however be obliged to state in detail, the sequence of events resulting in disposal of this appeal and would annex all orders in the present proceeding passed by the learned single judge as well as by the Division Bench from time to time.

(iii) The direction for continuation of the proceeding for investigation is upheld to the extent Central Government would be free to choose the agency through whom they would carry on such investigation and would be free to take any step as it may be found appropriate in this regard.

(iv) The direction for continuation of such investigation must be treated as a declaration u/s 237(a)(ii) of the Companies Act, 1956 and not a mandate upon the Central Government to carry on such investigation.

Appeal is disposed of accordingly without any order as to further cost.

In the present case we find, his Lordship passed series of orders directing various agencies to carry out investigations. Looking to the facts we are in full agreement with his Lordship, there would certainly be a justification to carry on investigation. If we look to the income tax assessment order relied on by Mr. Mookherjee appearing at pages 298-299 we would find, for the assessment year 2007-08 the company earned net profit for Rs. 290. They suffered penalty. The total income that was assessed was Rs. 3,400 only and the company paid tax for Rs. 1,046. Such an insignificant company proposed scheme of amalgamation involving crores through allotment of shares at a huge premium. However, his Lordship was perhaps not correct in either directing Director, Revenue Intelligence or the Reserve Bank of India. His Lordship was competent to issue direction u/s 237(a)(ii). His Lordship was right in sending the issue to the Ministry of Corporate Affairs being the appropriate authority of the Central Government. However, it is for the Central Government to decide which authority would investigate. Be that as it may, the report of SFIO would clearly show, despite being informed, the company did not appear. Hence, Mr. Mookherjee was not right in saying, opportunity was not given. We do not wish to make any comment on the irregularity. It is a fit and proper case for the Central Government to consider as to whether an investigation should be carried out by appropriate agency having authority in law followed by action that is permitted in law.

Considering the backdrop, we do not feel it inclined to permit the appellant to proceed with the proposed scheme of amalgamation. Hence, we dismiss the application for convening meeting of the shareholders treating the same as on the day''s list. The reports referred to above, so filed before his Lordship, would always be available to the Central Government for appropriate consideration so that they could take the issue to a logical conclusion in accordance with law. The Central Government would be free to take any decision that may be appropriate in the facts and circumstances of this case.

The learned judge directed matter to appear before his Lordship that may not be necessary in view of our judgment and order.

All the four appeals are disposed of accordingly with the clarifications and/or modifications as above. There would be no order as to costs.

Dr. Mrinal Kanti Chaudhuri, J.

I agree.