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2017 (1) TMI 1166 - MADRAS HIGH COURT

2017 (1) TMI 1166 - MADRAS HIGH COURT - TMI - Penalty for contraventions of the provisions of Sections 8(1), 9(1)(a) and 14 of FERA - legal status of the appellant independently - Held that:- As seen from the records that the appellant claimed not a citizen before the Division Bench of this Court in the Habeas Corpus Petition. In the election petition filed by him, he claimed as an Indian citizen. But before the Foreign Exchange Regulation authorities, he claimed as if he is a non-resident India .....

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otu powers under Section 52 and re-frame the charges sitting in appeal and whether new evidence can be accepted by the appellate authority? - Held that:- In the present case, the appellate authority has rightly considered only the evidence that was considered by the adjudicating authority and no new material was placed or considered. It is also not the case of the appellant that the appellate authority has based its findings on some evidence, alien to the adjudication proceedings, without granti .....

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be substantiated on that evidence, and that the adjudicating officer assumed the allegations in the show-cause notice as self-evident of the charges. Hence, on that score, it became necessitated for the appellate authority to deal with the evidence for corroborating the same with the points taken in defence. It is also evident from Page-96 of the order of the appellate authority that the learned counsel for the appellant also rightly admitted that the Board has the authority to consider the matt .....

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ng officer was prejudiced on the subject matter, which reflected in the adjudication process or in the decision. Upon perusal of the records, we find that the appellant was given a fair opportunity. As found by the appellate authority, the guilt of the appellant was culled out only from the documentary evidence, and the entire statements of the other witnesses were discarded. Thus the plea of bias put forth by the learned senior counsel appearing for the appellant, will not hold any water. Thoug .....

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a separate legal entity to the company, absolutely dissolves the liability of the Director of a company under every circumstances? - Held that:- The protection given to a company is not an absolute bar to proceed against the directors and it is to be decided on the facts of the each case put to test. In this regard, the appellate authority, after analysing the matter in detail, and also considering the evidence placed on record, came to the conclusion that the name of the company Dipper Investm .....

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charges can be made out on the basis of the evidence as narrated, that has been done in the inquiry during the adjudication proceedings. In view of the clear finding given by the appellate authority that the various acts done in the name of the company could not be attributed to the company and that there is no evidence that these were done in the course of company's business, it is clear that the appellant is legally liable for those acts. Accordingly, the fourth and final question of law is a .....

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nd Company Affairs, New Delhi. 2. The facts leading to the filing of this appeal are as under: (i) Originally, a total penalty of ₹ 31 Crores has been imposed on the appellant for contraventions of the provisions of Sections 8(1), 9(1)(a) and 14 of the Foreign Exchange Regulation Act, 1973 (FERA in short), by way of an adjudication order passed by the Special Director, Enforcement Directorate (Foreign Exchange Regulation Act), New Delhi, the respondent herein, in Order No.SDE(APK)/111/03/9 .....

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on the allegations that a person resident in India other than an authorised dealer in foreign exchange, without the general or special permission of the Reserve Bank of India - (a) otherwise acquired foreign exchange totalling to USD 1,04,93,313/- from persons other than authorised dealer in foreign exchange and thereby contravening the provisions of Section 8(1) of the FERA; (b) deposited the said foreign exchange amount of USD.1,04,93,313/- in the current account No.3001-8937 of M/s.Dipper In .....

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t for sale or cause it to be offered for sale to an authorised dealer in foreign exchange in India within three months from the date of his becoming owner thereof, and thereby contravening the provisions of Section 14 of the Act r/w Central Government's Notifications dated 15.06.1977 (GSR 839) and 06.07.1978 (GSR 996) as amended; (e) transferred and also made payments of foreign exchange of Pound Sterling 43,23,557/- to M/s.Meer, Care and Desai, Pound Sterling 90,000/- to M/s.Westback Limite .....

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charges respectively, and again a cumulative penalty of ₹ 1 crore for the last charge. The reduction of the amount involved in the charge to USD 62,61,313/- was made for the reason that the material on record does not however, categorically bring out that the other monies included in the enclosure to Barclays Bank's letter dated 04.08.1994 were also credited to Dipper Investment Account. (iv) Being aggrieved against the order imposing penalties as stated supra, the appellant filed an .....

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6 that had been brought to the notice of the Board by the respondent. A suggestion was also put to them that, in the alternative, they may consider the feasibility of obtaining an appropriate direction from the Supreme Court. This suggestion was made in view of the contentious stand taken by the parties as to the applicability, relevancy and effect of this Court's judgment on the issue whether the appellant, at the relevant point of time, was a person resident in India, which was also a cruc .....

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n behalf of the appellant herein that all the charges framed against the appellant are based on the premise that the appellant was, during the relevant point of time, a person resident in India. Therefore, it was argued that if he is not found to be a person resident in India during the relevant period, he will have to be exonerated of all the charges and consequently, the order passed by the adjudicating authority would be liable to be set aside. On the other hand, if he is found to be a person .....

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etention under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA Act in short). The detention order was challenged before this Court in HCP No.240 of 1996 and this Court rendered its judgment in March 1996, in which it was held that since the adjudication proceedings had already been initiated, the detaining authority had arrived at the subjective satisfaction. There is no whisper about that observation in the order passed by the adjudica .....

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on the legal status of the appellant different from the one arrived by this Court, as this Court, in that HCP, has not decided the question as to whether or not the appellant is a non-resident Indian and that the point raised and argued is entirely different in its nature and substance. He further argued that any decision in a proceedings where a preventive detention order has been challenged, cannot be a precedent in any adjudicating proceedings where the issue is to be decided on objective sta .....

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stion of legal status of the appellant or not. It was finally observed by the Board that in the judgment made by this Court in the HCP, it was concluded by this Court that the appellant was not a non-resident Indian at the relevant point of time. Stating that the Board is bound to go by the opinion of this Court in the HCP, the appellate authority upheld the findings of the adjudicating authority in that respect. With regard to other acts and omissions attributed to the appellant, the appellate .....

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h regard to the grounds taken by the learned counsel for the appellant ie., judicial bias, denial of due opportunity and non-application of mind, in support of his plea that the order of the adjudicating authority has to be set aside, the appellate authority proceeded to examine the evidences and also the legal position envisaged in the judgment of the Bombay High Court in State of Maharashtra v. Dr.Mahesh P.Mehta, reported in 1995 Cr. L.J.453, that in respect of a situation where a person found .....

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uire the foreign exchange of the draft for his own benefit as owner thereof thereby violating Section 8(1) of the FERA and that he temporarily lent the said foreign exchange to Barclays Bank by depositing the said amount with them thereby contravening Section 8(1); that he assumed the ownership of the said amount again by instructing the bank to transfer the entire amount lying to the credit of that account, in different amounts, to M/s.Meer, Care & Desai, M/s.Westback Ltd and to the Bank of .....

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lished by the evidence on record and the findings of the adjudicating authority. (vi) As regards the charge of lending the said foreign exchange to Barclays Bank in violation of Section 8(1), the appellate authority has held that the documentary evidence with regard to opening of the account and crediting the said amount by way of 13 drafts, substantiates the said charge. (vii) With regard to the charge of contravention of Section 8(1) on the allegation that he transferred the said foreign excha .....

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n the part of the appellant were set aside. (ix) It was also held that since the appellant did acquire the foreign exchange of USD 62,61,313/- in violation of Section 8(1), the contravention of Section 14 on the part of the appellant stands proved as it was not disputed that the said foreign exchange was not brought into India as required by the notification referred to in the show-cause notice. (x) As regards the charge of contravention of Section 8(1) on the allegation that the appellant trans .....

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lar charge in respect of the amount of USD 62,61,313/-, the finding of contravention of Section 9(1) in respect of the amount of Pound Sterling 44,37,242.90 was set aside. (xii) Thus the appeal was dismissed, except as regards the findings of contravention of Section 9(1)(a) and the penalties imposed therefor. The findings in respect of contraventions of Sections 8(1) and 14 in respect of the amount of USD 62,61,313/- were upheld and so the penalties imposed therefor. The finding of contraventio .....

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while the penalty of the remaining amount of ₹ 50 lakhs apportioned for contravention of Section 9(1)(a) was set aside. Accordingly, the order of the adjudicating authority was upheld with the modification only to the effect that the appellant is exonerated of the charges of contraventions of Section 9(1)(a) and the consequent reduction to the extent of ₹ 3 crores in the total amount of penalty imposed under the order made by the adjudicating authority. (xiii) The appellant was dire .....

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l Solicitor General of India pointed out that no question of law has been framed in the appeal, even though the appeal is maintainable only on a question of law, for which the learned senior counsel appearing for the appellant submitted that he is placing the proposed questions of law. But, on a perusal of the same, this Court was of the view that they were not really the questions of law. Thereafter, the learned senior counsel for the appellant suggested the questions of law as under: (i) Has n .....

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ident Indian? (iii) If the appellant was a non-resident Indian, then the charge under Section 8(1) of FERA would become unsustainable? (iv) Has not the Appellate Board committed error in law that after stating that the basis of the order passed by the adjudicating authority and the show-cause notice itself were vitiated, proceeded to decide the appeal on an entirely different basis, overlooking the appellant was never called upon to answer such charge in the show-cause notice? (v) Is the major p .....

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y the order under appeal could not be valid in the eye of law? 5. The learned senior counsel appearing for the respondent filed objections to the questions of law re-framed by the appellant, in which it is stated that the first question of law is without any substance as the adjudicating authority has rejected the same on the ground that he never investigated the matter. With regard to the second question as to whether the appellant is an Indian Resident or not, he submitted that the appellate a .....

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re, the appeal has to be dismissed. 6. When this appeal came up before this Court on 29.06.2016, this Court framed the following questions of law: (a) Whether the Appellate Tribunal was right in relying upon the judgment made in HCP No.240/1996 to conclude that the appellant was a resident within India and whether the Appellate Tribunal ought to have decided the legal status of the appellant independently before charging him under Sections 8(1) and 9 of the FERA Act? (b) Whether the Appellate Tr .....

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mpanies Act, which confers a separate legal entity to the company, absolutely dissolves the liability of the Director of a company under every circumstances? 7. Mr.B.Kumar, learned senior counsel appearing for the appellant submitted that the order passed by the appellate authority is against law and materially irregular and the same has resulted in serious miscarriage of justice. He submitted that the order passed by the appellate authority is liable to be set aside solely on the ground that th .....

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have analysed the material placed before it and given a finding on this crucial question, which is the basis for the entire proceedings. He further submitted that the appellate authority has failed to note that enough and proper opportunity for hearing had not been granted by the adjudicating authority. 9. The learned senior counsel appearing for the appellant has contended that the question of bias, put forth by the appellant was not considered by the appellate authority. He further submitted .....

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hence he is disqualified from sitting as an adjudicating authority to decide about the validity of the investigation documents gathered. In other words, it is his submission that the proceedings initiated by the authorities is purely a bias and it violates the principles of natural justice, since the person who was the investigating authority, later turned to be the person adjudicating the issue on hand. The learned senior counsel further stated that in the case of allegations of bias, it has t .....

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ntion, has to be relied upon, and that the judgment of this Court has not decided any question as to whether the detenu was a non-resident Indian at the relevant time, or not. In this respect, it is also his submission that the appellate authority had failed to see that the judgment given in the habeas corpus proceedings could never ever be relied upon in an adjudication proceedings which requires decision on objective standards and on evaluation of the evidence before it. Thus, according to the .....

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nected to the appellant and the dispute raised with regard to the registration of the company and the further allegation that for claiming non-resident Indian, no application was filed, the learned senior counsel for the appellant submitted that it is a jurisdictional fact and it is in no way connected to the offence framed under the Foreign Exchange Regulation Act. The learned senior counsel further stressed that the appellant is a Director, who only intends to become a non-resident Indian. Fur .....

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is to set aside the same and remit it for de novo enquiry. 12. The learned senior counsel for the appellant relied upon the following judgments: (a) Judgment of the Hon'ble Supreme Court in Bhagwandas Fatechand Daswani and others v. HPA International and others, reported in (2000) 2 SCC 13 and the Division Bench judgment of this Court in Jones Investment Co. Inc. v. Intellectual Property Appellate Board, reported in 2015-4-L.W.30, in support of his contention that long delay in delivery of j .....

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deration of material on record and therefore bad in law. (c) Judgment of the Hon'ble Supreme Court in Ram Parkash v. Union of India and others, reported in 2014 SCC OnLine P&H 860 and the unreported judgment of a Division Bench of this Court in R.Suresh v. Deputy Director, Enforcement Directorate, Chennai, made in C.M.A. No.614 of 2008 dated 06.08.2015, to state that a witness cannot be the adjudicator and that the domestic enquiry must be held by an unbiased person who is unconnected wi .....

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the issue on hand. (d) Judgment of the Hon'ble Supreme Court in State of U.P. vs. Mohammad Nooh, reported in AIR 1958 SC 86, in support of his contention that two roles could not obviously be played by one and the same person. In the present case, the 14th witness before the investigating authority, later turned to be the adjudicating authority. Therefore, according to the learned senior counsel, it violates the principle of unconnected persons cannot be permitted to participate in the adju .....

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ondent submitted that there are four sets of communications available with the Department and all these communications strengthen the case of the prosecution. According to the prosecution, no statement was recorded by Mr.A.P.Kala, who had investigated the case. Further nobody was examined to that effect. He further submitted that the appellant miserably failed to establish a single ground of bias. In this regard, the learned senior counsel for the respondent relied on the decision of the Hon' .....

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of this Court in the Habeas Corpus Petition. In the election petition filed by him, he claimed as an Indian citizen. But before the Foreign Exchange Regulation authorities, he claimed as if he is a non-resident Indian. Thus, dual stand has been taken by the appellant, which is not permissible under law, according to the learned senior counsel for the respondent. 14. In respect of bias, as put forth by the appellant, the learned senior counsel for the respondent submitted that this aspect was alr .....

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ce, it is contended that the participation of the adjudicating authority in the investigation, cannot be termed as bias. Added further that even assuming that the adjudicating authority had participated in the investigation, considering the nature of the powers conferred on the Authority under Foreign Exchange Regulation Act and the manner it has been done, the same does not require any interference. 15. In respect of the issue as to whether the appellant is an Indian citizen or not, it is submi .....

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ning the entire evidence on record, the adjudicating authority came to the conclusion that the monies belonged to the appellant and therefore, the argument of the appellant in this respect, is without any substance. 16. The learned senior counsel appearing for the respondent further submitted that the appellate authority being the first forum of appeal, has suo motu powers under Section 52(4) of the FERA and the appellate authority-Board may consider the charges that could be made and sustain if .....

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for the respondent prayed that this appeal has to be dismissed. 18. Heard the learned counsel on either side and perused the materials available on record carefully. 19. Even though many points were raised by the appellant challenging the impugned judgment, it is suffice to answer the questions of law framed by this Court. Accordingly, we will take up the questions of law one by one. 20. The first question of law is as to whether the appellate authority was right in relying upon the judgment mad .....

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Petition, one of the subjective satisfaction arrived at by the detaining authority was that adjudication proceedings on the charges contained in the show-cause notice had already been initiated. Even though it was decided in the judgment passed in the Habeas Corpus Petition that the appellant was not a person residing outside India, there is no whisper about the said judgment or finding in the order passed by the adjudicating authority, but the adjudicating authority also came to the conclusion .....

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the records that the appellant claimed not a citizen before the Division Bench of this Court in the Habeas Corpus Petition. In the election petition filed by him, he claimed as an Indian citizen. But before the Foreign Exchange Regulation authorities, he claimed as if he is a non-resident Indian. Thus, the appellant has taken different stands, which are not permissible under law. In such view of the matter, this Court deems it fit only to hold that the order passed by the appellate authority in .....

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s and conclusions arrived at by the adjudicating authority do not logically follow, on several crucial matters, and that no reasons have been stated as to how those conclusions would emerge from the evidence on record. But the appellate authority has powers under Section 52(4) of FERA for the purpose of examining the legality, propriety or correctness of any order made by the adjudicating officer. Section 52 of the FERA deals with Appeal to Appellate Board. At this juncture, it would be appropri .....

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icating authority under Sections 50 and 51. The appellate authority, viz. the Board is vested with the authority to pass any order that could be passed by the adjudicating authority. As per Section 52(3), the appellate authority can, after making such further inquiry as it deems fit, confirm, modify or set aside the order appealed against. The adjudicating authority as well as the appellate authority have also been granted powers under Section 53 to exercise any of the powers of the civil Court .....

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d only on the basis of the evidence collected by the adjudicating authority, unless it relies upon a new evidence, of which the party was put on notice. In the present case, the appellate authority has rightly considered only the evidence that was considered by the adjudicating authority and no new material was placed or considered. It is also not the case of the appellant that the appellate authority has based its findings on some evidence, alien to the adjudication proceedings, without grantin .....

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e substantiated on that evidence, and that the adjudicating officer assumed the allegations in the show-cause notice as self-evident of the charges. Hence, on that score, it became necessitated for the appellate authority to deal with the evidence for corroborating the same with the points taken in defence. It is also evident from Page-96 of the order of the appellate authority that the learned counsel for the appellant also rightly admitted that the Board has the authority to consider the matte .....

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is pertinent to mention here that the appellate authority has put the appellant on notice, heard the counsel elaborately on all the issues, perused and discussed the evidence meticulously and modified the order by which the appellant has been exonerated of the charges under Section 9(1). One of the clinching finding recorded by the appellate authority is about the so-called meeting between the Directors of M/s.Dipper Investments Limited on 25.06.1994 in Singapore, on which date, the appellant w .....

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iated on account of bias, violations of principles of natural justice and fair play as he was a part of the investigating team and a witness in the criminal case initiated by the Department. There is no dispute about the legal point that a witness cannot be the adjudicator and the enquiry must be held by an unbiased person who is unconnected with the incident so that he can be impartial and objective in the enquiry. There is also no dispute in the law laid down by the Hon'ble Supreme Court i .....

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enunciated in the latin maxim Nemo judex in causa sua. But in the present case, Mr.A.P.Kala, who was the adjudicating officer, had not issued any summons nor recorded any statement or participated in any searches. He only monitored the investigation and exchanged correspondences, as is evident from the records. It also cannot be said that the adjudicating authority had some vested interest against the interest of the appellant so as to divert himself from the evidence to decide against the appel .....

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appearing for the appellant, will not hold any water. Though the principles enunciated in the other judgments relied on by the learned senior counsel for the appellant, in respect of bias, are not in dispute, the same will not apply to the case on hand. Further, the plea of bias looses its significance in the present case, since the appellate authority had independently examined the issues based on evidence on record, afresh. Thus, the third question of law is answered against the appellant. 24 .....

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he miscreants shielding their illegal acts under the name of a company. In Union of India v. ABN Amro Bank, reported in (2013) 16 SCC 490, the Apex Court has held as under : 43. We are of the view that in a given situation the authorities functioning under FERA find that there are attempts to overreach the provision of Section 29(1)(a), the authority can always lift the veil and examine whether the parties have entered into any fraudulent, sham, circuitous device so as to overcome statutory prov .....

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ses of cases where lifting the veil is permissible, since that must necessarily depend on the relevant statutory or other provisions, the object sought to be achieved, the impugned conduct, the involvement of the element of the public interest, the effect on parties who may be affected, etc. In Escorts case, this Court held as follows: 90. ... Generally and broadly speaking, we may say that the corporate veil may be lifted where a statute itself contemplates lifting the veil, or fraud or imprope .....

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nd also for tax evasion, the court can always lift the corporate veil and examine the substance of the transaction. This Court further held: 280. Lifting the corporate veil doctrine can, therefore, be applied in tax matters even in the absence of any statutory authorisation to that effect. FERA (Amendment) Act 29 of 1993 has no effect on the principle of lifting the corporate veil and the question as to whether it was established so as to circumvent the provision of Section 29(1)(a) can always b .....

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rafts in that account and transferring the funds so credited to the accounts of Meer Care & Desai, Westback Ltd., and Bank of Ireland. There is also a clear finding that none of these acts could be attributed to the company and that there is no evidence that these were done in the course of company's business. It has also been further held that all acts of a corporate entity are to be done in the name of that entity, but does not necessarily follow that whatever has been done in the name .....

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