TMI Blog2019 (6) TMI 329X X X X Extracts X X X X X X X X Extracts X X X X ..... pending before this Court and we had granted some interim relief in this case, at this stage, looking to the totality of the facts and circumstances of the case, we are not inclined to exercise our extraordinary jurisdiction and interfere into the matter. We dismiss the petition with liberty to the petitioner to show-cause to the impugned action taken and take recourse to such remedy as is permissible under law. - W.P.(C) 5511/2019 & CM APPL. 24214-15/2019 - - - Dated:- 30-5-2019 - MR. BRIJESH SETHI J. Petitioner Through: Mr. Vikram Chaudhary, Sr. Adv. with Mr. Ravinder Singh, Ms. Raveesha Gupta, Mr. Rishabh Surana, Mr. Harshit Sethi, Mr. Nikhil Rohatgi Ms. Narayani Bhattacharya, Advs. Respondents Through: Mr. Tushar Mehta, SG with Mr. Amit Mahajan, CGSC, Mr. D.P. Singh, SPP, Mr. Kanu Aggarwal, Mr. Manu Mishra Ms. Mallika Hiremath, Advs. JUDGMENT Rajendra Menon, Chief Justice (Oral) CM APPL. 24215/2019 (exemption) Allowed, subject to just exceptions. W.P.(C) 5511/2019 CM APPL. 24214/2019 1. Challenge in this writ petition filed under Articles 226 and 227 of the Constitution of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition can be dismissed on the ground of availability of statutory remedy against the impugned action. He points out that for the present a provisional attachment order at the stage of issuing show-cause notice is resorted to, after show-cause is filed the order that may be passed by the adjudicating authority can be subjected to appeal under Section 26 before the Appellate Tribunal and thereafter under Section 42 before this Court and therefore for reasons in detail indicated in the affidavit, it is submitted that this Court should not interfere into the matter. The circumstances based on which the preliminary objection is raised is detailed in paras 6, 7, 8, 9 and 10 of the affidavit in question which reads as under: 6. It is submitted that the Petitioner Company is almost in its entirety held by a company called M/s Wave Impex Pvt. Ltd. It has specifically come on record that M/s. Wave Impex Pvt. Ltd. is owned and controlled by Aditya Talwar and Deepak Talwar. It has also come on record that the proceeds of crime has been invested in the attached property by Aditya Talwar and Deepak Talwar through the web of companies (sic) owned and controlled by them. 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bringing on record certain additional facts. As far as the additional facts brought on record by the Union of India is concerned, they are detailed in paras 2, 3, 4 and 5 of the affidavit filed today and the same reads as under: 2. The proceeds of crime amounting to ₹ 272 crores approximately came into the accounts of M/s Asia Field Ltd. and M/s Gilt Asset Management Ltd. Aditya Talwar is the beneficial owner of both these companies. 3. The Shareholding pattern of the Petitioner Company is as follows: S.No. Holder Percentage 1. Wave Impex Pvt. Ltd. 71.64 2. Asia Pac Alternative Investment Pte. Ltd. 14.39 3. Asia Field Ltd. 2.72 4. IDFS Trading Pvt. Ltd. 11.25 4. The primary holding of the Petitioner Company is thus of the above mentioned c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g or controlling the company. In the recent decision of the Supreme Court in Balwant Rai Saluja (supra) the concept of piercing the corporate veil was considered in detail and after examining several decisions including those of courts in England it was concluded that the doctrine of piercing the veil allows the court to disregard the separate legal personality of a company and impose liability upon the persons exercising real control over the said company. But, the Supreme Court cautioned that this principle has been and should be applied in a restrictive manner, that is, only in scenarios wherein it is evident that the company was a mere camouflage or sham deliberately created by the persons exercising control over the said company for the purpose of avoiding liability. It was also held that the intent of piercing the veil must be such that would seek to remedy a wrong done by the persons controlling the company and, therefore, the application of the doctrine would depend upon the peculiar facts and circumstances of each case. 9. Apart from referring to the aforesaid legal position, Shri Vikram Chaudhary, learned Senior Counsel argues that as far as the allegations wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certain authorities. Reliance is also placed in support of the aforesaid contention on another judgment of the Supreme Court in the case of Satya Pal Anand vs. State of Madhya Pradesh Ors., (2016) 10 SCC 767 to say that the well established principle of invoking remedy in a writ petition which is the extraordinary discretionary remedy can be denied in a given case where efficacious statutory remedy is available and there are material to show that possibility of the process of law being misused is not ruled out. It is canvassed that in this case the process of law is being misused in the name of the company for protecting the illegal transaction made which have been invested in the companies in question and the property acquired by the company is nothing but proceeds of crime. Further reliance is placed on a judgment of this Court in the case of Desh Ram Pal vs. State, DRJ 1992 (24) 206 and a judgment of the Madras High Court in the case of Mohan Gupta vs. The Enforcement Officer reported in (2010) 3 MWN (Cr.) 217. 11. We have heard learned counsel for the parties at length and we have considered the rival contentions. We are conscious of the fact that challe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner herein is Wave Hospitality Pvt. Ltd. and it is their case before us that their property to the tune of more than ₹ 120 crores are being attached. As far as the shareholding pattern of petitioner company is concerned, as reproduced hereinabove in para 3 of the short affidavit filed by the respondents today, it is clear that 71.64% share in the petitioner s company is owned by Wave Impex Pvt. Ltd. and the other shareholders in the petitioner s company are Asia Pac Alternative Investment Pvt. Ltd., Asia Field Ltd. and IDFS Trading Pvt. Ltd. Asia Field Ltd. is owned by Aditya Talwar and as far as Asia Pac Alternative Investment Pvt. Ltd. is concerned, it is said that 100% shareholding of this company and Wave Impex Pvt. Ltd. are primarily held by Aditya Talwar. Proceedings are being held against this individual and there is material to show that he has not co-operated in the investigation. If the shareholding pattern of the petitioner company and its shareholding companies are taken note of and if the proceeds of the crime amounting to ₹ 272 crores on investigation seems to have come into the shareholders of companies owned by Aditya Talwar and if we apply the t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
