TMI Blog2016 (11) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... ough for the Central Government to exercise the drastic power. Something more was required and to be established as circumstances or material enough for exercise of the power. That is clearly lacking in this case. This is the only basis, namely, the report of the Registrar of Companies, West Bengal, or its contents which has enabled the Central Government to exercise its powers under section 212(1)(c). It is, therefore, apparent that it has not necessarily acted in terms of its power conferred by section 212 to direct investigation into the affairs of the company in public interest. The foundation for reaching the opinion or satisfaction is the report of the Registrar. We have referred to the details in that report and we are of the firm opinion that based on that the Central Government could not have recorded a satisfaction or an opinion that investigation into the affairs of the company are necessary. There is no element of public interest which is projected, save and except some vague and general references to certain allegations in matters of bank finance and allotment of coal mines and alleged diversion of raw materials. There has been absolutely no details furnished nor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on finally by the present judgment and order. 3 Rule. Respondents waive service. By consent, heard forthwith. 4 It is necessary to set out certain facts in order to appreciate the challenge raised in this writ petition. The petitioner Nos.1 to 6 and 9 are shareholders of petitioner No.8, namely, Singhal Enterprises Private Limited (for short the company ). That company is a Kolkata based company. The version of the petitioners is that they hold altogether 1849200 equity shares in this company constituting 89.58% of the total paid up share capital of this company. The petitioner Nos.1 to 6 and the petitioner No.7 are also Directors of the company. They are related inter-se. We are not concerned with their relationship, but suffice it to state that these petitioners claim to be permanent residents of Raipur, the capital of the State of Chattisgarh. The first respondent to this writ petition is the Additional Director (Investigation) of Serious Fraud Investigation Office (for short SFIO ). It initially issued a summons dated 26th May, 2016. The claim is that it was wrongly issued to the Managing Director of the petitioner No.9, but that company does not have any Managing Di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .S. Sponge Private Limited. The petitioners state that in terms of the MOU, the Jharsuguda unit of Singhal Enterprises Private Limited was to be demerged to another company to be owned by the said Radha Krishan and his family. Further, since the two factories of the company were located in two geographically different regions, it was thought in the interest of the company to give effect to such scheme of demerger. The other company was identified as Singhal Enterprises (Jharsuguda) Private Limited and a company in control of Radha Krishan. For such demerger, the company petitioner No.9 and Singhal (Jharsuguda) Private Limited filed proceedings before the Hon'ble High Court at Calcutta. They prayed for sanction to the scheme of demerger. The petition in that regard was jointly filed (Company Petition No.384 of 2007). However, Parmanand raised disputes with regard to the MOU. The allegation is that he sought to resile from his obligation thereunder. In January, 2008, he opposed the sanction to the scheme of demerger alongwith the said B.S. Sponge Private Limited. The said Parmanand followed up with the institution of a suit in March 2008, being Civil Suit No.47 of 2008 before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner No.8-company could not be filed with the Registrar of Companies. The petitioners claim they were unable to hold an Annual General Meeting of the company on account of the non- cooperation from Radha Krishan and his group. The claim of the petitioners is that at all material times and to the best of their ability, they have complied with the statutory obligations under the provisions of the then Indian Companies Act, 1956, but in the absence of the information about the affairs of the Jharsuguda unit controlled by Radha Krishan it was not possible to prepare the consolidated accounts. 10 The company and its Directors received notice from the Registrar of Companies from time to time with regard to non-compliance of the statutory provisions relating to filing of annual accounts and/or holding of the AGMs and copies of these notices together with the replies thereto are referred extensively at page 11 of the paper-book. 11 Thus the petitioners state that they are in receipt of the notices from the Registrar of Companies on their alleged failure to fulfill the statutory obligation and these notices were duly replied. The Registrar has not thought it fit to pursue his acti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioners also forwarded alongwith their replies, copies of the relevant orders passed by the High Court of Calcutta. They also gave a detailed explanation as sought by the Registrar when he invoked section 234(1) of the Indian Companies Act, 1956. 15 It is stated that since Radha Krishan and his group were acting in a manner prejudicial to the interest of the company and oppressing the petitioners group of shareholders by also closing down the Jharsuguda unit, the petitioners had no alternative, but to initiate proceedings invoking sections 397 and 398 of the Indian Companies Act, 1956. Once again, they approached the Company Law Board in March, 2013. The proceedings were numbered as Company Petition No.60 of 2013. In these proceedings also orders were passed by the Company Law Board from time to time. The first interim order was passed on 23rd April, 2013, copy of which is Annexure-S. There are further orders passed but the petition is pending adjudication. 16 The petitioners then complain that a letter was sent in June 2013 by the Registrar of Companies, West Bengal, Kolkata forwarding the complaint of a third party having no connection whatsoever with the company and cal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion. That order has been passed pursuant to a report dated 13th January, 2016, submitted by the Registrar of Companies, West Bengal, but at the relevant time, no copy thereof was enclosed or provided. Therefore, the report was not available for the petitioners to resist these orders effectively. 19 Reliance is also placed upon a letter dated 13th June, 2016, issued to the company by the State Bank of India informing and recording that the company obtained a total credit of only ₹ 22.82 crores from the bank as on 12th June, 2016. 20 It is in the above circumstances that this writ petition has been filed. 21 The writ petition has been amended extensively by incorporating and raising grounds to challenge the order dated 6th May, 2016, copy of which is at Annexure-Z to the writ petition. The petitioners point out that though this writ petition was filed on 14th June, 2016, there was no reply received to it till 31st August, 2016. We have on record a reply of one Sanjai Rai, Additional Director, SFIO. It is stated that the Central Government was informed by the Registrar of Companies vide a letter dated 13th January, 2016, that there are gross irregularities committed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffidavit in reply. It is tendered in Court today. We take it on record. 2. Since Mr. Godbole for the petitioners complains that the petitioners' Advocates have received it just now in Court, we agree to his request for an adjournment. For that purpose, we grant time and list these matters on 23-9-2016. 3. In the meanwhile, we direct the Additional Director, Serious Fraud Investigation Office to procure all original records and files, particularly from the Registrar of Companies at Kolkata so as to enable this Court to peruse them and if necessary. We also clarify that no further affidavit in reply shall be filed by the respondents. 24 It is on the above material that we have heard the learned counsel appearing for parties. 25 Mr. Girish Godbole learned counsel appearing for the petitioners would submit that there is no compliance with the direction of this Court contained in the above quoted order. He submitted that the Additional Director SFIO has not procured all the original records and files from the Registrar of Companies. Though this direction was issued, the records have not been produced for perusal of this Court. Mr. Godbole submits that apart from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to time. It is in these circumstances that we must view this matter according to Mr. Godbole. He would submit that the Central Government cannot exercise the power under section 212 of the Act of 2013 when there are allegations and counter allegations of groups of shareholders and family disputes and legal proceedings are pending in a competent Court. Thereafter, the Central Government cannot at the behest and instance of one rival or disgruntled group seek to investigate the affairs of the company. Precisely that has happened in the instant case. The aggrieved group has approached one Member of Parliament. That Member of Parliament on their behalf, has addressed a letter to the Central Vigilance Commission. That letter contains a complaint with regard to the alleged mismanagement of affairs of the company and, therefore, that complaint was forwarded by the CVC to the Central Government. The Central Government took cognizance of that complaint and caused an inquiry to be made by the Registrar of Companies, Kolkata, and report by him. Mr. Godbole submits that this writ petition has been filed without in any manner submitting to these authorities pursuant to the summons and the reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revents it from invoking the appropriate statutory powers, particularly the measures in the SARFAESI Act and to recover its monies by invoking the right vesting in it. Secondly, there is no basis for presuming that the raw material has been diverted or that there are certain acts which would endanger and adversely affect the rights of the public in the mines. There are several provisions enabling the authorities in charge of managing and administering the mines or issuing licences for prospecting minerals therefrom and those authorities can use them. There is no substance in such allegation because there is no divergence as is claimed. Even if there is diversion alleged, action can be taken under distinct laws for the alleged violation of the rules and regulations enabling mining and transport of coal or other minerals. For all these reasons, Mr. Godbole would submit that this is a fit case where this Court should exercise its jurisdiction and strike down a patently mala fide action. He also submitted that the impugned order is ex facie illegal and erroneous. It is vitiated by errors of law apparent on the face of record. No useful purpose would be served by the petitioners submitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontents of the report enabled the Central Government to form that opinion. The opinion is reasonable. The discretion has been exercised by applying correct judicial principles and there is no deviation from the same. For these reasons and when the petition is premature, this Court should not interfere in writ jurisdiction and the petition be dismissed. 31 The Indian Companies Act, 1956 (for short 1956 Act ) and The Companies Act, 2013 (for short 2013 Act ) are both enacted to consolidate and amend the law relating to companies and certain other associations. As far as the 2013 Act is concerned, on its initial enactment and later on its amendment, it has been clarified that the legislation relating to incorporation and registration of companies had to be consolidated and brought in tune with the current situation prevailing in the country and abroad. Several provisions had to be introduced which were hitherto not introduced. As far as the power and referable to the provisions of these two enactments are concerned, their basic foundation remains the same. 32 As far as the 1956 Act is concerned, the same contains provision enabling the Central Government to act upon a report m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s required by the company, any copy or extract thereof to the document referred to in sub-section (1), and he shall annex that writing in pursuance of the order he passes under sub-section (3A) or of an order under sub-section (4). Sub-section (6) of section 234 deals with a situation where information or explanation called for is not furnished within the specified time or furnished but on such information or explanation being perused the Registrar forms an opinion that the document referred to in sub-section(1) together with such information or explanation or such books and papers discloses an unsatisfactory state of affairs or does not disclose a full and fair statement of any matter to which the document purports to relate, the Registrar shall report in writing the circumstances of the case to the Central Government. 34 By sub-section (7) of section 234, the Registrar can act on a representation and material placed before him by any contributory or creditor or any other person interested that the business of a company is being carried on in fraud of its creditors or of persons dealing with the company or otherwise for a fraudulent or unlawful purpose, he may, after giving t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 237(b)(i) and (ii), the Central Government has to form an opinion that there are circumstances suggesting that the business of the company is being conducted with intent to defraud its creditors, members or any other persons, or otherwise for a fraudulent or unlawful purpose or in a manner oppressive to any member or that the company was formed for any fraudulent or unlawful purpose or that the persons concerned in the formation or the management of its affairs have in connection therewith been guilty of fraud, misfeasance or other misconduct towards the company or towards any of its members. From the facts placed before us, it is clear that the Government had not bestowed sufficient attention to the material before it before passing the impugned order. It seems to have been oppressed by the opinion that it had formed about Shri S. P. Jain. From the arguments advanced by Mr. Attorney, it is clear that but for the association of Mr. S.P. Jain with the appellant-company, the investigation in question, in all probabilities would not have been ordered. Hence, it is clear that in making the impugned order irrelevant considerations have played an important p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onwealth countries had occasion to consider the scope of provisions similar to Section 237(6). Judicial dicta found in some of those decisions are difficult of reconciliation. 11. Coming back to Section 237(b), in finding out its true scope we have to bear in mind that that section is a part of the scheme referred to earlier and therefore the said provision takes its colour from Sections 235 and 236. In finding out the legislative intent we cannot ignore the requirements of those sections. ln interpreting Section 237(b) we cannot ignore the adverse effect of the investigation on the company. Finally we must also remember that the section in question is an inroad on the powers of the company to carry on its trade or business and thereby an infraction of the fundamental right guaranteed to its shareholders under Article 19(1) (g) and its validity cannot be upheld unless it is considered that the power in question is a reasonable restriction in the interest of the general public. In fact the vires of that provision was upheld by majority of the Judges constituting the Bench in Barium Chemicals' case principally on the ground that the power conferred on the Centra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Company Petition before the Company Law Board. There also, an interim injunction was sought but the application in that regard was rejected. Then, the rival groups filed a Company Application for appointment of an Administrator. 37 Thereafter, the first respondent to the appeal before the Supreme Court filed a writ petition under Article 226 of the Constitution of India before the High Court of Andhra Pradesh seeking a writ of mandamus directing the Union of India to forthwith prosecute the appellant Nos.2 and 3 in accordance with law. The Hon'ble Supreme Court referred to the allegations in the writ petition and then held that based on a prayer for investigation into the affairs of the first appellant company and to take action, that the writ petition was filed. The Hon'ble Supreme Court referred to the powers conferred in the Central Government in paragraphs 7 and 8 of the decision. Thereafter, following Rohtas Industries, in paragraphs 9, 10 and 13, it held thus : 9. The power, therefore, to appoint Inspector to investigate the affairs of a company has to be exercised by the Central Government after a proper preliminary scrutiny by the Registrar or by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present case an attempt has been made by the first respondent to get the affairs of the company investigated in the manner provided under the Companies Act. Neither the Central Government nor the Company Law Board has been moved by the 1st respondent in accordance with law for this purpose. Instead of moving the authorities prescribed under the Companies Act the first respondent has chosen to resort to the writ jurisdiction of the High Court for a direction to have the affairs of the company investigated by the C.B.I. 13. The only ground for intervention appears to be public interest . We fail to see what public interest is involved in disputes of the kind referred to in the writ petition. They basically deal with mismanagement of the affairs of the company and oppression of the minority shareholders. The company is only a deemed public limited company. Its shareholding is very closely held. The only other factor referred to in the writ petition to invoke the doctrine of so called public interest, is the fact that the company had borrowed moneys from public institutions. This is no ground for not availing of the statutory remedies provided under the Comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Arora joined therein. The allegations made by the said Batra and Arora are somewhat identical to the present case and to be found in paragraph 4. They read as under : (1) That the Chairman and his brother had diverted funds of the Company and siphoned out the same through series of transactions to other sister concerns; (2) That the Annual General Meeting on 31-3- 1986 was misconducted; and (3) That Shri G.R. Agarwal had invested over ₹ 25 lakhs in the names of poor and illiterate villagers of Jeetpura, Haryana, in the sums of ₹ 10,000/- to ₹ 25,000/- each even though those persons had no resources. It is, therefore, Shri G.R. Agarwal, who is actively controlling the affairs of the company on the basis of such bogus shares. To substantiate these allegations, the said Arora had collected signatures and thumb impressions and statements from the said villagers, who had stated that they had never applied for such shares. 39 The Company Law Board passed an order and the detailed findings in the same have been noted by the Division Bench. The Company Law Board directed an investigation to be caused in terms of the above statutory powers vestin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority must form the requisite opinion honestly and after applying its mind to the relevant material before it. In exercising the discretion, the authority must have regard only to circumstances suggesting one or more of the matters specified in sub clauses (i), (ii) and (iii) of Section 237(b) of the Companies Act. It must act reasonably and not capriciously or arbitrarily. It will be an absurd exercise of discretion, if, for example, the authority forms the requisite opinion on the ground the the director in charge of the company is a member of a particular community. Within these narrow limits, the opinion is not conclusive and can be challenged in a court of law. (refer paragraph-45 of Rohtas Industries Ltd.'s case AIR 1969 SC 707). The Supreme Court has also observed in the above case at paragraph-46 that - If it is established that there were no materials upon which the authority could form the requisite opinion, the court may infer that the authority did not apply its mind to the relevant facts. The requisite opinion is then lacking and the condition precedent to the exercise of the power under Section 237(b) is not fulfilled. 15. The discretionary p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onferred under the 2013 Act, they are also identical. By section 206, there is a power to conduct inspection and enquiry by section 207. Both these powers are to be exercised by the Registrar. Then, the report has to be made by the Registrar and the Registrar or the Inspector after inspection of the Books of account or inquiry under section 206 and other books and papers of the company under section 207, shall submit a report in writing to the Central Government along with such documents, if any, and such report may, if necessary, include a recommendation that further investigation into the affairs of the company is necessary. For that, reasons in support have to be set out. We are not concerned with the power of search and seizure vesting in the Registrar in terms of section 209. Then comes the crucial provision in the 2013 Act, namely, section 210. That reads as under : 210. Investigation into affairs of company.- (1) Where the Central Government is of the opinion, that it is necessary to investigate into the affairs of a company - (a) on the receipt of a report or the Registrar or inspector under section 208; (b) on intimation of a special resolution passe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issa to Raigarh, Chhattisgarh. The Company has got CBT allotment of 10 Railway Rack per month and doing fraudulent activity. They sale material to other plant and misusing the rack allotment. I has also stated that do proper investigation through Railway Board and there allotment of CBT should be suspend until the investigation is done. d) Company has not filed its Balance Sheet since 5 years. e) Various other issues like money laundering fraud / cheating etc have raised in enclosure of complaint. [See Pg. 188] 44 On each of these issues the Registrar of Companies stated that only the issue in paragraph 1(d) that the company has not filed its balance sheet for five years comes within his purview. However, his explanation says that the company has filed a petition before the Calcutta High Court being Company Petition Nos.475 of 2010 and 112 of 2012 restraining the Registrar of Companies from taking action. There is an interim order passed on 3rd October, 2010. As far as the loan transaction with State Bank of India, he says clearly in his report that it is not covered under the purview of the Companies Act. Wrong distribution of loan is a matter of investigation b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aud Investigation Office (SFIO) of the Ministry of Corporate Affairs. 4. The Director, SFIO, in exercise of powers u/s 212(1), may decide such number of inspectors, as he may consider necessary and the Inspectors so appointed, shall exercise all the relevant powers under the Companies Act, 2013 for the purpose of the investigation. 5. SFIO shall complete the investigation and submit report to the Central Government within a period of four months from the date of issue of this order. 6. This order is issued for and on behalf of the Central Government. Sd/- (U K Sahoo) Joint Director 46 A bare perusal of this order would indicate that the Central Government has referred to the report dated 13th January, 2016, but completely misread and misinterpreted it. It has not recommended any investigations to be made under the Companies Act,1956 or 2013. If at all the investigations are to be made in terms of this recommendatory report, or suggestion therein, that is for the multiple disciplinary authorities to find out misutilisation of bank finances and other violations of law. The respondents ought be aware that there is a difference in the langu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs are required to be investigated; in the public interest or on the request from any department of the Central Government or the State Government. By section 211, the SFIO is established to investigate frauds relating to a company. It is a very special office and headed by a Director and consists of such number of experts from the fields enumerated in subsection (2) of section 211 to be appointed by the Central Government from amongst persons of ability, integrity and experience. The wide powers that this office enjoys, as is set out in various sub-sections of section 212, would denote as to how its involvement comes after the investigations are assigned to it by the Central Government. By their very nature the investigations into frauds relating to a company have to be assigned. They have to be of such magnitude and seriousness demanding involvement of experts in the fields enumerated in sub-section (2) of section 211. Therefore, while exercising the powers under sub-section (1) of section 212, the Central Government ought to be not only forming an opinion about the necessity to investigate into the affairs of the company, but further that such investigations have to be assigned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usion that there is lack of requisite material to arrive at the requisite opinion or record the necessary satisfaction, then, in exercise of our powers of judicial review, we can safely quash and set aside the impugned order. We find that the opinion recorded or the satisfaction reached is vitiated by total non application of mind. None of the factors which are germane and relevant for forming the opinion have been referred. The opinion or satisfaction is based only on the complaint of the Member of Parliament to the CVC and with regard to which report was called for from the Registrar. Even the contents of that report have been, as held above, misread and totally misinterpreted. Based on that no opinion could have been recorded that it is necessary to investigate the affairs of the company in public interest. 50 Once we reach the above conclusion, it is not necessary to express any opinion as to whether the SFIO at Mumbai has the necessary territorial jurisdiction to summon the petitioners for an inquiry. We also do not record any opinion for we are satisfied that in the facts and circumstances of the present case even in relation to private company, a complaint could have been ..... X X X X Extracts X X X X X X X X Extracts X X X X
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