TMI Blog2021 (6) TMI 198X X X X Extracts X X X X X X X X Extracts X X X X ..... ntemplated under the Agreement. Even the idea to incorporate Devas was with fraudulent intentions coupled with malafide objects to enter into Agreement with Antrix with no responsibility at all. It is unknown to law that such a prestigious agreement with Govt. Owned Company was got signed by a clerk, paying remuneration for the same. Therefore, the Agreement in question would become void ab initio and it would not create any legal rights, much civil rights to Devas. Thus the incorporation of Devas made with fraudulent intentions is ab initio void and its name should be struck from the Register of Registrar of Companies by virtue of this winding up proceedings. Though the validity of Agreement in question is not the subject matter in the instant case, the fraudulent and unlawful purpose behind incorporation of Devas, would be relevant factors to be taken into consideration by the Tribunal, while deciding the case - thus, the circumstances as mentioned under provisions of Section 271 of Companies Act, 2013 stand fulfilled so as to order Winding Up of R-1 Devas Company. The Petitioner has established its case beyond doubt that the incorporation of DEVAS/R-1 Company was made in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Paid-up Share Capital at ₹ 18,37,150/- (Rupees Eighteen lakh Thirty-Seven Thousand One Hundred and Fifty). (3) That Respondent No. 2 is Ministry of Corporate Affairs, which is in charge of administration of the Companies Act, 1956/2013. (4) The 'then officials' of Antrix Corporation Limited ('then officials' to distinguish them from the Petitioner Company and hereinafter referred to as the 'then officials'), including it's then Chairman, had executed a contract dated 28/01/2005 in favour of the Respondent No. 1 Company. The agreement was entered into to render Satellite Based Digital Multimedia Broadcasting Services (hereinafter referred to as SDMB Services) by leasing transponder capacity in the S-Band spectrum and was done in connivance with the then officials/public servants of ISRO, Department of Space and other government bodies connected with the agreement; and the then officials/Directors/ of the Respondent Company, and the same was terminated by letter dated 25.02.2011. (5) It is alleged that the Petitioner itself is a victim of the fraud and corruption, to which its then Chairman and other officials were party, and on ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... callously and corruptly awarded to the Respondent No. 1, which was incorporated merely two months prior to the award of this contract, by two persons including a former employee of ISRO, with a paltry share capital of Rupees One Lakh. The amount comes to around USD 2200 at the then prevailing exchange rate, as against the payments to the tune of USD 40 million plus additional annual payments, which were contemplated under the contract. That the very grant of the contract is mired in fraud and corruption is evident from the following: i. No attempt was made, contrary to the existing judgments of the Supreme Court in regard to the award of Government contracts, to invite tenders/bids through public advertisement; to lay down in advance the necessary qualifications and eligibility criteria including technical qualifications as well as the financial capacity to operate the contract to be awarded and thereafter, to award the contract to the most qualified and eligible entity. On the other hand, giving these salutary and settled principles a complete go-bye, the contract dated 28/01/2005, conferring largesse on the Respondent No. 1 Company, was executed in a wholly arbitrary fashion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l dated 15/04/2004, which form the backdrop of the incorporation of the respondent company ostensibly to render SDMB Services. It is the JV proposal, which was presented to officials of ISRO, DoS and Antrix by Shri Ramachandran Viswanathan, and was subsequently converted into the contract in question, for lease of spectrum or 'Space Segment Capacity'. (8) Further, in 1998, a wholly owned subsidiary of this Company M/s. World Space India Pvt. Ltd., was incorporated in Bangalore. Shri D. Venugopal and Shri. M.G. Chandrasekhar were made Vice President (Operations) and Managing Director of this wholly owned subsidiary. Shri Ramachandran Viswanathan was serving as the Managing Director of M/s. Forge Advisors LLC, USA in 2003. During this year, he met Shri K.R. Sridhara Murthi, the then Executive Director, M/s. Antrix Corporation Ltd, who formed part of the Indian Delegation to the USA under the then Chairman, ISRO and this meeting led to the signing of an MoU dated 28/07/2003 and a subsequent JV Proposal dated 15/04/2004 to SDMB services (also referred to as 'Digitally Enhanced Video and Audio Services'). (9) The JV Proposal dated 15/04/2004 by Shri Ramachandra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India as the hybrid SDMB Services to be provided under the said contract were not even contemplated by the SATCOM policy. (12) The Respondent No. 1 Company did not have any space segment allocation from DoS, carrier plan approval and up linking permission from the Network Operation and Control Centre (NOCC) of the Government of India, and frequency authorization from the Wireless Planning and Coordination Wing (WPC) of the Government of India. Further, the Technical Advisory Group' (TAG) which is to be consulted on any new technological developments and use of satellite Applications was kept in the dark about the contract dated 28/01/2005. Though the contract stipulated that the onus of procuring all approvals and licenses is on Devas, the same could not have been signed without any of the licenses having first been obtained by Devas, in view of the heavy investment involved in the launch and operation of satellites by ISRO for making available the space segment capacity. (13) The then Board of Antrix arbitrarily fixed the price for the leased spectrum and allowed all the transponders in two satellites to be arbitrarily leased to a single party, i.e., Devas, which was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same. (15) Further, it was promised in the FIPB application that around 1000 people would get employment in India, whereas in fact only about half a dozen persons were employed in India. Devas through their applications to FIPB authorities, confirmed that the proposed scope of services will only be value-based internet service involving contemporary indigenous technology at a Pan India level. The license issued to Devas by DoT on 02/05/2008 was only a Category 'A' ISP License at a Pan India level and the license did not permit Devas to render the hybrid SDMB Services in India. No mention of such services can be found in the license granted and the monies to the tune of ₹ 579 Crores were brought in, and when the same were not being used for the stipulated ends, the investment would be rendered illegal and loses the eligibility as a protected investment. (16) The investment of ₹ 579 Crores, brought in, instead of being used to render internet services, was used in the following manner that resulted in a case of Money Laundering: i) Around ₹ 75 Crores were sent out of India by creating a wholly owned subsidiary in the USA, with the Director ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and penal proceedings, including the filing of the charge sheets by the CBI, are subsequent to the passing of the arbitral award and could not, therefore, be placed before the Arbitral Tribunal. (18) The Respondent No. 1 Company has siphoned away, out of the country, almost the entirety of the foreign investment made in India in the guise of spurious payments to its own subsidiary entities. The genesis and entire objective of the Respondent No. 1 Company, the subsequent actions taken by the said Company including manipulated/fraudulent FIPB approvals, the fraudulent foreign investments brought into India and then laundered out to USA, the illegal execution of the Antrix-Devas agreement dated 28/01/2005 for services which were not even in vogue, using technologies not even in the ownership of the Respondent No. 1 Company, by way of concealment in conspiracy with the officials of Antrix, DoS and others, clearly establishes the fact that the Respondent No. 1 Company had no real substratum except as conduit for committing illegal actions. It is also evident that the foreign investors/shareholders were hand-in-glove with the Respondent No. 1 Company in committing the illegalities, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l-defined and transparent norms were followed. The Agreement in question is in complete violation of Article 3.5 of the SATCOM policy that stipulates a single window clearance through licenses issued by a committee of Secretaries comprising of Department of Space, Department of Telecom, Ministry of Information Broadcasting, Ministry of Home, Ministry of Defence and MoI with Wireless Advisor to the GoI. Devas Services do not figure in the SATCOM policy including the provisions for regulatory approval and licenses and this hybrid service, which is a bundle of telecommunication and broadcasting services involving terrestrial retransmission network and satellite spectrum are connected and traceable to several Ministries, Departments and Wings of the Government. (22) Devas has not entered into an agreement with Department of Space/INSAT for the use of capacity to render the Devas Services as mandated by the SATCOM Policy. Instead, it has entered into an agreement with Antrix, which is not authorized by law to enter into agreements to award transponder capacity to any party. The letters of Rogatory issued by CBI to the French Authorities, it is inter alia stated that as on 28/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement and became a C.A. Since 1997, he was an article clerk of Mr. M. Umesh, Chartered Accountant and left the job in April/May 2008. It is very clear that the Act of fraud is evident that not even Directors have signed this agreement or any responsible person, who can be made accountable, and the investors have not questioned the same. (25) The then officials of Antrix in collusion with the Respondent No. 1 Company, allowed all the transponders on GSAT-6 and 6A to be leased to a single private party the Respondent No. 1 Company, in contravention to the SATCOM policy. The Respondent No. 1 Company had fraudulently claimed that it had ownership and right to use IPR in the design of Digital Multimedia Receivers ( DMR ) and Commercial Information Devices ( CID ). Further, it is revealed that in 58th Meeting of the Board of Directors, held on 17/03/2005 at Bangalore, Mr. G. Madhavan Nair, informed the Board that Antrix had signed a contract worth US$ 144 Million with the Respondent for leasing of S-Band Transponders over a period of 12 years. Ms. Veena S. Rao, the then Additional Secretary (AS), Department of Space, being one of the Directors on the Board of Antrix was also present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the rendition of ISP services. The types of services which can be provided under the ISP license issued on 02/05/2008 to the Respondent No. 1 Company has been catalogued completely and the same does not envisage or permit the S-DMB services. (28) Four entities from Mauritius subscribed shares for premiums of around ₹ 150 Crores and the balance shares with premiums of ₹ 430 Crores was subscribed by DT Germany through its subsidiary DT Singapore. Curiously DT Singapore got only 19% shareholding whereas the Mauritius entities own 37%. This skewed shareholding further fortifies the element of fraud in the entire dealings of the R-1 Company. The share subscription agreement between the R-1 Company and its investors/shareholders clearly refers to the agreement dated 28/01/2005 and the payments made in connection therewith. (29) The object of Devas was to harm public interest and monies, for personal illegal gains for its shareholders/owners. Significant public interest is involved in the matter as the Respondent No. 1 Company had fraudulent sought to use ₹ 269 Crores of public money for building satellites for exclusive and personal gain of a few, in clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same was illegally terminated by the Petitioner on 25.02.2011. Since the Devas Agreement had an arbitration clause, the disputes in relation to its termination were referred to an International Chamber of Commerce ( ICC ) being arbitration Case No. 18051/CYK on 01.07.2011 ( ICC arbitration ). Neither in the termination letter dated 25.02.2011 nor in the pleadings filed in the ICC arbitration, was there a whisper of any fraud committed by the Respondent Company or its ex-directors or officers. The ICC Arbitration Tribunal gave a unanimous award dated 14.09.2015 against the Petitioner. Under the ICC award a sum of USD 562.5 million a/w. interest became due and payable by the Petitioner to the Respondent Company. The Petitioner, therefore, became a debtor of the Respondent Company. It is inconceivable and untenable in law that a debtor is allowed to seek a winding up of its creditor and this action of the debtor to prevent the creditor, Respondent Company, to pursue its remedies in law in India is untenable and wholly mala fide and this Hon'ble Tribunal ought not to countenance such action of the Petitioner. Fraud should have been raised at the outset at the stage of terminat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Government is being a judge in its own cause, which ought not to be permitted by this Hon'ble Tribunal. During 1990s, there was a dynamic time for DoS/Indian Space Research Organization ( ISRO ) due to the liberalization of the Indian economy. In the early 1990s, DoS/ISRO had become interested in attracting private/foreign investment to help fund its activities, particularly in the field of building, launching and leasing telecommunications satellites, which remained a core part of India's space agenda. In 1992, DoS/ISRO decided to form Petitioner/Antrix as a marketing arm with the specific goal of attracting foreign and private investors to India's space programmes. As Scientific Secretary, ISRO, the ex-director of Respondent Company No. 1 assisted the Chairman to obtain the requisite approval of the Government of India at all levels, including the Prime Minister's Office, for the creation of Antrix as a company fully owned by the Government of India. (7) Antrix being a front for DOS/ISRO, Professor U.R. Rao, who was then head of ISRO, DOS and the Space Commission, and instrumental in setting up Antrix, became Antrix's first Chairman. The managem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther, not only are the allegations pending adjudication before the Hon'ble Delhi High Court, but the allegations also made by the Petitioner are similar/identical to those pending before CBI Court, PMLA Court or the Enforcement Directorate. In these circumstances, the Respondent Company and its shareholders, directors and officers are presumed to be innocent until found guilty by a competent court of law. (11) It is contended that various courts have protected the interests of Devas by granting interim orders in various proceedings initiated by various authorities. The present case is a classic case of an abuse of jurisdiction of not only this Hon'ble Tribunal but also the jurisdiction of other Hon'ble Courts and Hon'ble Tribunals where the Government (not being private party) is bound to act fairly yet is trying to portray an outright civil dispute as a criminal offence. It is a settled law that jurisdiction of this Hon'ble Tribunal U/s. 271(c) is a summary jurisdiction and it has no jurisdiction to decide complicated questions of facts, which require a full-fledged trial before the competent Civil Courts/Tribunals and the Criminal Courts. Therefore, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted on 28.01.2005 and was duly signed on behalf of the Respondent Company by a person authorized to sign by the Respondent Company. Since the Respondent Company had not raised any objection regarding the authority of the signatory to sign on this behalf, no objection can be heard by a third party in this regard. Subsequently, when Dr. Radhakrishanan became the Chairman of ISRO and Antrix, he appointed one Dr. B.N. Suresh to examine the Devas Agreement to review the same. Further it is alleged, the allegations made by the Petitioner that actions of the Respondent Company were contrary to TRAI recommendation is false. (15) On January 28, 2005, Devas and Antrix executed an Agreement for the Lease of Space Segment Capacity on ISRO/ANTRIX S-BAND Spacecraft by Devas Multimedia Pvt. Ltd. For almost five years thereafter, Antrix and Respondent Company together worked intensely to develop a first of its kind Integrated Satellite System in India. This system was uniquely capable of delivering state-of-the-art communication applications for consumer applications, rural development, e-governance, emergency communications, remote connectivity and secure and strategic services. The Devas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, the Respondent Company would have been in a position to, and would have, immediately rolled out its AV business while waiting for the technology advances of the TD-LTE infrastructure to mature in 2011 before rolling out its broadband wireless access services. Further, the ICC Arbitral Tribunal eventually concluded that Antrix had wrongfully repudiated the Devas Agreement. (19) It is apparent that the Petitioner cannot identify with specificity, a single fraudulent or illegal act that the Respondent Company has committed. Therefore, the present Petition is an abuse of process of this Hon'ble Tribunal and should be dismissed. A bare perusal of the Devas Agreement will show that the Respondent Company actually undertook an obligation to pay huge sums to the Petitioner for availing the S-Band spectrum. (20) The Petitioner has failed to establish that the affairs of the Respondent Company were conducted in a fraudulent manner and that the Respondent Company was formed for an unlawful purpose and/or the persons concerned in the formation and management of its affairs have been guilty of fraud, misfeasance or misconduct in connection therewith. There is no material on re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner be put to strict proof of all the false allegations being made herein. It is also strange that none of the shareholders have filed any complaint, yet the Petitioner Antrix is filing false and frivolous complaints. The investors of the Respondent Company are world renowned equity shareholders, and it is inconceivable that they will invest into an illegal project. In fact, the investors had meetings with ISRO and DOS before investing in the Respondent Company and its project. Without prejudice, even if any technical violation were to be assumed, it cannot be a ground to winding up the Respondent Company. The Respondent Company can cite various examples where criminal cases against Companies have been undertaken but no winding up proceedings have been filed nor any winding up orders passed against the said Companies. For example, Satyam Computers, IL FS etc.. (24) The Petitioner has failed to establish that the affairs of the Respondent Company were conducted in a fraudulent manner and the Respondent Company was formed for an unlawful purpose and the persons concerned in the formation and management of its affairs have been guilty of fraud, misfeasance or misconduct in c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the proviso is not interpreted as stating a general rule. The proviso cannot be used for interpreting the main enactment and it should not be given greater or more significant role in interpretation of the main part of the enactment. (3) The ex-management of the Respondent No. 1 had miserably failed to prove its bona-fide and there are ample instances of the same against the ex-management of the Respondent No. 1. On a proper appreciation of the facts presented to the Union to India and in the petition, it would be clear not only that it was incorporated for a fraudulent purpose but also that the affairs of the Respondent Company were being managed in fraudulent manner. From the findings available so far, it is apparent that the Respondent/DMPL actually conducted its business in a dishonest manner. The conspiracy involves the officials of both Petitioner and Respondent Company as they concealed primary facts from the Government of India and obtained certain approvals fraudulently and therefore, the officials of the Petitioner Company are also facing corruption charges. (4) The officials of the Petitioner Company at the relevant point of time conspired to enter an agre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed a license to provide ISP services and they have received 579 Crores on the basis of approval from FIPB board, but they provided the ISP services for few people for few months only in small locality. It is evident that the company has earned only INR 80000 by providing the ISP services but spend around 500 Crores and this observation alone is enough to prove that the company was running their affairs in a fraudulent manner. (7) Further, the Provisional Liquidator has filed three reports namely OLR 14/2021, OLR 23/2021 and OLR 31/2021 in the instant case. From the reports of the Provisional Liquidator, it is evident that the Respondent Company is not maintaining any registered office, which is in violation of Section 12 of Companies Act, 2013. Further, it is also ascertained by the Provisional Liquidator that the statutory audit has not been properly conducted and the statutory auditor has not performed duties entrusted on him as per Section 143 of the Companies Act, 2013. The findings of the Provisional Liquidator have corroborated the aspects of fraud, which the Petitioner Company has made out in the present Petition. He has also found that the Respondent Company was in fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly manage the resources and allow the private parties to enjoy those resources, but that permission cannot be granted without following an open and fair process. The government has an affirmative duty to act as trustee in regard to these resources and the courts have an obligation to ensure that the government and its agencies fulfil this duty and therefore, the Supreme Court of India recognized the Doctrine of Public Trust to ensure that Government fulfil its duty as trustee. The officials of the Central Government are entrusted to act in bona-fide manner while performing their public duty but in the present case as evident, various officials, who were entrusted to do so failed to perform their public duty. However, the mala-fide actions of these officials cannot be allowed to cause any further harm to the public interest. The incorporation of the Respondent Company is result of those mala-fide actions and hence it will be in public interest to wind up the Respondent Company. (11) They have relied upon the following judgments in support of their case: i. Collector of Malabar v. Erimmal Ebrahim Hajee. AIR 1957 SC 688: 1957 SCR 970 ii. K.L. Patel v. Lalbhai Trikumlal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f fraud which meets the requirement of Section 271(c) of the Companies Act, 2013. (2) There is no policy or licensing procedures prevalent either in 2005 or thereafter for Devas Services. Consequently, the act of fraud committed by Devas is promising to deliver a bouquet of services which had no governing policy in India and no licensing procedures. It is evident that the MoU dated 28.07.2003 and the proposal for Joint Venture dated 15.04.2004 laid the foundation of fraud which translated into the Devas Antrix agreement dated 28.01.2005. On 09.06.2004, the then officials of Antrix prepared a note in which Agenda 9 was to consider the note on new business opportunities which had been described as a Joint Venture proposal from Forge Advisors USA for Satellite based services for 13 delivery of video, multimedia and information services through mobile receivers in vehicles and mobile phones and in Para 3 of the said note records the facts that then Chairman of ISRO who was also the Secretary of DoS and the Chairman of Antrix, constituted a committee headed by Dr. K.N. Shankara, Director, Space Application Center, Ahmedabad, which later came out with the unsigned Shankara Committee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llite, Devas required an allotment letter to be issued by the DoS and no such allotment letter has been produced. There was no licensing regime for Devas Services and the telecom policy broadcasting policy and SATCOM Policy governing telecommunications, broadcasting and internet services contain multiple clearances, approvals, permissions besides major and minor licenses to be issued by various Ministries and various departments under these Ministries. Devas could not produce a single approval, permission, authorisation, or a license required to do Devas services using S-DMB technology and hiring the Satellite Transponder Capacity from the DoS. Thus, proving conclusively and without an iota of doubt, the multiple actions of fraud. (6) It is a common fact that an ISP license can only enable a service provider to render internet service and an approval for IPTV services can only enable a service provider to provide television services through the same internet to the subscriber or customer base. In addition to the fact that an ISP licensee with IPTV authorization can render its services only using wired line network and cannot use the wireless network including satellite unless ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the ISP license issued by DoT dated 02.05.2008. All the shareholders are, therefore, parties to the fraud of illegal diversions of both within India and outside India. More importantly, clause 7.11 concedes the fact that every shareholder has done the due diligence expressing satisfaction. Therefore, every shareholder is conscious of the decision taken to become a shareholder and, in the process, an investor and be a party to the acts of fraud committed by Devas. (9) Further, the Respondent has been continuously adjourning the matter before this Tribunal whereas they plead exactly the contrary before the US District Court. While passing its order dated 29.03.2021 the US district Court, Western District of Washington at Seattle in which the Respondent was the Petitioner, had held as Intervenors have asked this Court to hold an evidentiary hearing to assess Respondent's allegations of fraud against the Petitioner. Even if this matter were not on appeal, the Court has jurisdiction to consider the issue, the Court would decline to do so at this time. Therefore, two things are clear that even though it is only a secondary Court dealing with enforcement and should not proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er advertisement of the Petition, as advertisement of the Petition is mandatory before any final winding up order is passed. It is not a defence of the R1 Company but something which the Petitioner ought to have pointed out and it is the duty of this Hon'ble Tribunal under the provisions of law enumerated hereinafter to advertise the Petition at an appropriate stage but definitely before any final winding up order is passed. Sections 468 and 469 of the Companies Act, 2013, inter alia, empower the Central Government to make rules, inter alia, applicable to winding up. It is seen from Section 468(2)(i), the Central Government is empowered to make rules, in exercise of which the Central Government has framed the Companies (Winding Up) Rules, 2020. These rules specify the procedure for hearing of Winding up Petitions and procedure of winding up proceedings. Before passing of a final winding up order and after admission of the Petition, this Tribunal is mandatorily required to invite the objections through publication of advertisement of Petition by giving not less than 14 days' notice before the hearing. Thereafter, the Tribunal must hear and consider all the objections filed/r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enge to the ICC Award. (4) The Counsel for Petitioner argued on 03.05.2021 that the R1 Company was formed with ₹ 1,00,000 share capital. It is a common commercial practice to incorporate a company with limited capital and the required capital is infused subsequently and the entire capital required is not infused at the time of incorporation itself. Furthermore, the foreign investors invested in R1 Company after meeting government officials and satisfying themselves and the seriousness of the government to undertake its obligations under the Devas Agreement. However, the said Devas Agreement was illegally and unlawfully terminated. Thereafter, each of the shareholders brought their own actions against the Government of India. The money was admittedly used for the payment of lawyers and did not go back into the pockets of the shareholders. Therefore, there is no question of any money laundering. Furthermore, there is no complaint from any shareholder of the R1 Company of any fraud and/or misappropriation or money laundering. The Respondent No. 2 and the Petitioner have not shown any scheduled and/or predicated offence, without which there cannot be any allegation of money ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the management that there has been no fraud on the company and/or there has been no fraud by any of its officers. Even if the year 2016 is taken to be knowledge of fraud, it is inconceivable how on the one hand the management of Petitioner company would inform their auditor that no fraud has been committed on the company, and on the other hand the Petitioner would continue to file applications before the Hon'ble High Court of Delhi for amendment of its challenge to the ICC award, on the ground that a fraud has been perpetrated on Petitioner and thereafter file the present petition on the same ground of fraud, which is being opposed by R1 Company. (8) In any event, if Petitioner through its balance sheet is representing to the world that no fraud has been perpetrated on it, then under the principles of estoppels it cannot argue that in the very same time period, a fraud was perpetrated on it on any ground whatsoever. This further demonstrates that the allegations in the petition are merely an afterthought, after a unanimous arbitration award was rendered in. 2015 by the ICC Arbitral Tribunal, which consisted of a former Chief Justice of India (Dr. A.S. Anand) against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the CBI charge sheet and, therefore, it cannot be said that the resolutions are tainted. (12) In the 64th meeting of ICC held on 23.06.2001, a decision was taken that DoS will acquire and allocate the necessary transponder capacity from foreign satellites for meeting specific customer requirements. For private customers, Government funds will not be used. In order to take care of this, DoS will use its commercial wing Antrix which will enter into back-to-back agreements between the foreign satellite source and the Indian customers. The 65th Meeting of the ICC shows that MoU between Antrix and VSNL (TATA Company) was approved which reaffirms the point that Antrix (Petitioner herein) is only a marketing arm of DoS. Antrix provides transponder lease service; launch services; mission support services, etc to third parties. (13) It has been stated by the Suresh Committee Report which was set up by Dr. K. Radhakrishnan, who was the Chairman of Petitioner, Secretary of DOS, Chairman of ISRO as well as Chairman of Space Commission at the relevant time to comprehensively examine the Devas Agreement. The Committee stated that it is a usual practice for name not to be mentioned. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct a short term Experimental/Trial of wireless equipment at Bangalore , which allowed the R-1 Company to use all parts of its system, including terrestrial reuse of spectrum. On 15.07.2009, the R-1 Company's experimental license was extended through 30.09.2009. (16) After successful experimental trial by R-1 Company in September 2009, R-1 Company prepared an elaborate and detailed Application with description of the R-1 Company's Integrated Satellite System with all technical parameters for frequency authorization/operating license to be submitted to WPC/DoT. The same was submitted to Petitioner/ISRO in 2010 and was finalized in consultation with Petitioner/ISRO personnel. In February 2011, the Devas Agreement was illegally terminated, and R1 Company's application was never sent by Petitioner/ISRO to WPC/DoT. Therefore, R1 Company had taken all necessary steps towards application to WPC/DoT. (17) It is evident from the Devas Agreement, R-1 Company never represented that it had a patented technology. It was capable of delivering hybrid services. Moreover, R-1 Company represented that it had the ability to design Digital Multimedia Receivers (DMR) and Commercia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... B-SH. It is submitted that two-way interactive services are not even rendered by DVB-SH technology. The R1 Company's sur-rejoinder dated 04.05.2021 demonstrated the concept of two-way interactive services and how that was also available with the R1 Company. At this stage, the Petitioner then filed another rejoinder dated 05.05.2021 to the sur-rejoinder saying that these services should have been in a box in January 2005 when the Devas Agreement was signed. Respondent No. 1 provided a response to this base allegation in the further affidavit of ex-director of R1 Company dated 05.05.2021. (20) An amount of ₹ 582.65 crores was received by the Company till 31.03.2011 and till termination the same was used and retained in India only to implement the Devas Agreement and only about ₹ 69 crores were invested in Devas US subsidiary who was providing technical help to R1 Company for the purpose of the Devas Agreement. A sum of ₹ 58 crores were paid to Petitioner as upfront capacity reservation fees. A sum of ₹ 21 crores were in FDs and a sum of ₹ 114 crores were kept in mutual funds. Subsequently, a sum of ₹ 21 crores lying in the bank account has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... over Devas Services which itself can be proved only by bringing in expert technical witnesses. The case of R1 Company is that FIPB approval/ISP was sufficient to provide Devas Services. It may be proved wrong in a trial, but it is also plausible that the same could also cover Devas services. (23) R1 Company moved to Manipal Center and later to a commercial building in Jayanagar as its regular offices. Further, R1 Company had an office in Metro Center in Washington and before the cancellation of the Devas Agreement, there were more than 50 employees. The real employment opportunities would have come into picture after successful launch of the satellites by Petitioner. If the project had taken off there would have been more than 1000 employees. Once the Devas Agreement was terminated most employees left and only a handful were left. In fact, the R1 Company had a Company Secretary namely Mr. Vinod Sunder. Most of the records of the company have been seized in January 2017 by Enforcement Directorate of which the company has no record. CBI has also earlier raided and took several documents. Therefore, to only disclose the current position is yet another way of misleading this Hon&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tors of R1 Company that a business support agreement was entered into and the money owed to DMAI was sent out through proper banking channel. The aforesaid allegation at the highest (through denied) can be a FEMA violation but does not constitute fraud. Accordingly, the Petitioner's allegations that the R1 Company's payments to DMAI were a sham has no basis in fact. The R1 Company made payments to DMAI under established agreements for business services that were necessary for the R1 Company to satisfy its obligations under its Devas Agreement. The R1 Company has also relied on the following judgments: i. P. Srinivasa (T.) vs. Fleming India [1990] 68 Comp Case 506 (Kar) passed by the Hon'ble High Court; ii. Madhusudan Gordhandas and Co. v. Madhu Woollen Industries Pvt. Ltd. [1972) 42 Comp Cas 125 passed by the Hon'ble Supreme Court of India; iii. Nehru Place Hotels vs. Bhushan Ltd. 182 (2011) DLT 300 passed by the Hon'ble High Court of Delhi; iv. Mvi. Ahmadur vs. Registrar of Companies passed by the Hon'ble High Court of Guwahati; v. Falcon Gulf vs. Industrial Designs Bureau by the Hon'ble High Court of Rajasthan. vi. Jagatji ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dvertisement must fail. Therefore, a cumulative reading of both the provisions makes it clear that issuance of advertisements is not mandatory in all cases and if a Tribunal so thinks that in a given case it need not issue advertisement, parties cannot compel the Tribunal to do so. This significant difference in the 2020 Rules had not been brought to the notice of this Tribunal by Devas. (3) The provisional liquidator has impleaded himself in these proceedings and the concerned court including the accused and their Counsels are aware of the proceedings. Likewise, the PL has also impleaded in proceedings outside the Indian jurisdiction and the concerned courts and parties are also aware of the same and petitions in opposition are getting filed. Consequently, there is no lack of knowledge or information about the present proceedings. In the circumstances, issuing the advertisement or not doing so is not going to serve any purpose. The whole exercise is a useless empty formality. The plea of non-issuance of advertisement was raised by Devas for the first time during the final lap of arguments and that too orally. Devas had been participating in these proceedings from day 1 i.e., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19.01.2021 and the PL had placed on record three reports namely OLR 14 of 2021 dated 03.02.2021, OLR 23 of 2021 dated 27.02.2021 and OLR 31 of 2021 dated 11.03.2021, in which various information relating to fraud especially the siphoning of funds outside India (though part of the PMLA investigation), has now been nuanced further, showcasing the actual diversion of funds into which entity in the US post the laundering. In the light of the above facts and circumstances, the Petitioner has enough and more time to file this Company Petition before this Tribunal seeking a winding up of Devas U/S. 271(c) on the grounds of fraud. The Supplementary charge sheet dated 08.01.2019 is not an independent case. Therefore, going by the own case of Devas, if 3 years have to be reckoned from the date of the supplementary charge sheet dated 08.01.2019, this Company Petition dated 18.01.2021 is very much within the period of limitation. Therefore, the question of limitation on facts simply does not arise. (6) The alternative submission of Devas on limitation that the entire transaction in question dates back to 2005 and therefore the limitation period expires in 2008 should fail according to Dev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lity. (10) The Petitioner has not filed the Company Petition either to delay or frustrate any proceedings. In fact, Petitioner has not sought a single adjournment from the date of filing and intentional delay to defeat justice is resorted to only by Devas. Therefore, the submission that Petitioner cannot maintain this petition is clearly illegal and unsustainable. (11) Devas' contention seeking for cross examination needs to be rejected in toto as Devas did not even press for the same, seriously before this Hon'ble Tribunal in the course of their arguments. This contention is raised out of sheer desperation and frustration besides a clear afterthought solely intended to delay, protract, and abuse and keep abusing the due process of law. The case was first heard on 19.01.2021. The impleading applicant took the matter to NCLAT which rejected the appeal on 11.02.2021 and this order has attained finality. When this Tribunal issued directions to complete all pleadings and fixed the matter for final hearing on 23.03.2021, all pleadings were completed before 22.03.2021. When the matter was about to be taken up for hearing on 23.03.2021, the impleading Applicant approache ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... written submissions and not a single submission raised was denied by Devas. When SATCOM Policy conceives a series of Ministries, Departments, Committee of Secretaries and various other technical committees, even to examine approved services under the SATCOM Policy and legitimate licenses to be issued thereupon, the self-appointed committees and self-generated reports for Devas technology and Devas Services, something not known to the world and which was neither conceived in SATCOM Policy nor for which any licenses were in place, could not have been approved. A surprising stand was taken by Devas that SATCOM Policy does not apply to it at all and applies only to Antrix even under the agreement dated 28.01.2005. Petitioner submits that this agreement which is fraudulent, and a nullity contains a specific clause Article 12(b)(vii). The whole and the sole responsibility vests only with Devas and it is too late in the day for Devas to plead that SATCOM Policy and licensing procedures do not apply to Devas. Furthermore, SATCOM Policy does not deal with only technical details. It also deals with various services and service providers, the process, protocols, permissions and procedures in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (b) if the company has acted against the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States public order, decency or morality; (c) if on an application made by the Registrar or any other person authorized by the Central Government by notification under this Act, the Tribunal is of the opinion that the affairs of the company have been conducted in a fraudulent manner or the company was formed for fraudulent and unlawful purpose or the persons concerned in the formation or management of its affairs have been guilty of fraud, misfeasance or misconduct in connection therewith and that it is proper that the company be wound up; (d) if the company has made a default in filing with the Registrar its financial statements or annual returns for immediately preceding five consecutive financial years; or (e) if the Tribunal is of the opinion that it is just and equitable that the company should be wound up. 11. Therefore, the main issues which arise for consideration in the case are as follows: (1) Whether the Central Govt. has duly sanctioned the Petitioner to file the instant Petition or not; (2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king clause of force majeure as defined in Article 11. (5) Aggrieved by the said termination, Devas filed a request on 1st July, 2011 for Arbitration dated 29th June, 2011 with the ICC Court and nominated Mr. Veeder QC as an Arbitrator by invoking arbitration clause as available under Article 20 of the Agreement by claiming damages equal to the value of its business, which is quantified as USD 1.41 billion, plus interest and costs. (6) Finally an Award dated 14th September, 2015 was passed in Case No. 18051/CYK by International Court of Arbitration of the International Chamber of Commerce (ICC Award) in the case titled as Devas Multimedia Pvt. Ltd. Vs. Antrix Corporation Ltd. by directing Antrix to pay USD 562.5 million to Devas for damages caused by Antrix's wrongful repudiation of the Devas Agreement; to pay simple interest on USD 562.5 million from 25th February 2011 to the date of this award at the rate of three month USD LIBOR+4 % Antrix is to pay simple interest at the rate of 18% per annum of the amounts in paragraphs 401(b) and (c) from the date of this award to the date of full payment; (7) In pursuance to the Award, Devas started taking steps in Indian ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e spectrum that had been leased to Devas. As will become apparent, Dr. Radhakrishnan's motivation is not necessary to determine. The ultimate result of his conduct, however, was a decision by India's Cabinet Committee on Security (CCS) to annul the agreement. Devas was notified of the CCS' decision on 25th February, 2011. (2) Devas subsequently commenced the arbitration. Devas alleges that Antrix was not entitled to terminate the Devas Agreement and repudiated its obligations by purporting to do so. Devas says that it has accepted that repudiation and it is entitled to damages equal to the value of its business (which it claims is USD 1.41 billion), plus interest and costs. On 30th December 2011, Antrix informed the Secretariat that it had filed an application before an Additional City Civil Judge in Bangalore for an' injunction restraining Devas from proceeding in any manner with the purported arbitration before the ICC . The Tribunal understands that the Application was made under Section 9 of the Indian Arbitration and Conciliation Act 1996, seeking an order permanently restraining this arbitration from proceeding. (3) On 9th April, 2012, the Supreme Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said decision cannot be anticipated. It is likely to be indefinite. It is not possible for Antrix to take any effective step to resume the obligations under the Agreement. The event of force majeure is beyond the reasonable control of Antrix and is clearly covered by Article 11(b) of the Agreement and, in particular, 11(b)(v) ... act of governmental authority in its sovereign capacity... . Any possibility of resumption of obligations by Antrix under the Agreement stands excluded. The subject Agreement No. ANTX/203/DEVAS/2005 dated 28th January 2005, therefore is terminated with immediate effect. (7) On 28th February, 2011 (paras 128/129) Devas wrote to Antrix, denying that the Devas Agreement was terminated and stating that, pursuant to Article 20(a) of the Devas Agreement, it was referring all disputes arising from or under the Agreement to senior management of both parties. On 15th April, 2011, Antrix wrote to Devas that referred to its letter of 25th February, 2011 and enclosed a cheque for the amount of INR 58,37,34,000 (approximately USD 13 million) as a reimbursement of the UCRF. On 18th April 2011, Devas wrote to Antrix, returned Antrix's cheque and state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the other Party under this Agreement nor be liable to pay any sum as compensation or damages (by whatever name called). Antrix then sent a cheque to Devas for INR 58,37,34,000/- (approximately USD 13 million) as reimbursement of the UCRF. 14. The basic facts stated above clearly establish that the incorporation of Devas itself was with fraudulent intention to grab prestigious contract in question from Antrix in connivance and collusion with the then officials of Antrix. Devas was incorporated on 17th December, 2004 and was able to obtain the Contract on 28th January, 2005 i.e. in less than 45 days from the date of its inception. It is a matter of fundamental economics, rather common sense that in order to obtain a prestigious, sophisticated contract like the contract in question, the concerned Company should possess adequate experience and infracture the field for a considerable period of time. In the instant case, it is not in dispute that Devas, at the time of entering into contract, did not possess a minimum experience even to qualify to participate in such contract, much less obtain it. However, it is falsely contended that it has experienced Scientists/Technical expert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xtract para 199 of the Award, which says: The Tribunal therefore finds that CCS (Cabinet Committee on Security) decision to annul the agreement was an act of a Governmental Authority acting its sovereign capacity for the purpose of Article 11(b). Even though Devas suffered this finding, it was able to obtain huge award and making all sorts of efforts for enforcement of such award, which is questioned and sub-judice before Hon'ble High Court of Delhi. 17. Though the termination of the agreement was not in dispute, in fact it was accepted by the R1 Company before the Arbitral Tribunal, on the contrary it has claimed damages. Accordingly, the Arbitral Tribunal decided the case by awarding damages to Devas. Ultimately, the ICC Award is the bone of contention between the parties in various proceedings initiated in India and abroad. As stated supra, ICC Award itself is under challenge and sub-judice before the Hon'ble High Court of Delhi. Antrix/ Union of India could not make out the case of fraud before ICC Court, as it was not aware of the fraud committed by the R-1 Company at that point of time. The Union of India came to know about the fraud only in the year 2016 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d from the date of its incorporation, are very clear, and ultimately its fraud and fraudulent activities are unearthed during inquiries conducted by CBI and ED, which resulted in initiating various criminal cases against Devas, its management, the then Officers of Antrix. There is a long history of fraud and fraudulent activities committed by Devas and its Management before and after its incorporation. Though termination of Agreement in question is simpliciter, it is in fact result of various fraudulent activities committed by the promoters of Devas, in direct collusion with the then officers of Antrix. Therefore, it is not correct to contend that cause of action arise only when CBI and ED unearthed mischief/fraud etc and filed its charge sheets. There are two types of causes of action which normally arise to reckon question of limitation in judicial proceedings. One time cause of action and continuous cause of action. In some cases like promissory notes, agreements etc, cause of action for judicial intervention will end as per law unless the parties mutually consent to extend period of limitation. In some cases, like fraud/crimes, adverse possession against public property etc, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring; there is no complaint from any shareholder of the R1 Company of any fraud and/or misappropriation or money laundering etc., are concerned, it is true that these issues will be examined by respective Courts, as stated supra. (4) With respect to the contention that the Balance Sheet of 2016 in question clearly states that To the best of our knowledge and belief and according to the information and explanations given to us, we report that no case of fraud has been committed on or by the Company or by its officers or employees during the year. Even in 2019-20, which is the last balance sheet etc., the mere statements/declarations by Auditors/Charted Accountants would not be deemed to be conclusive proof to establish that there is no fraud or fraudulent activities resorted to in the Company, as the subsequent investigations will prove these. (5) With reference to the contention regarding advertisement to be published before admission and for final hearing of the Petition in terms of Rules 96/99 or Rules 5 7 of CCR 1959/WUR 2020 is concerned, it is true that Advertisement of Petition to be published, depends on the facts and circumstances in a given case. In the insta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... signed and built in India by BPL, India etc., are concerned, it is a simple commercial principle that unless a Company is well established over a period of time with all requisite infrastructure in the relevant field, it would not be entitled even to enter into negotiation or to enter into Agreement/contract. It is an admitted position that Devas entered into Agreement in question in less than 45 days of its incorporation in connivance and collusion with the then officers of Antrix. And this bare fact itself is enough to hold that the Agreement in question deemed to be ab-initio void and Antrix was entitled to forfeit UCRF (Up from Capacity Reservation Fees) paid by Devas. However, in all fairness and not knowing the fraud committed by Devas in the transaction in question, Antrix has returned UCRF by way of cheque. However, not satisfied with return of its deposit and in order to achieve its object of getting liquidated damages, it has rushed to the ICC Court and obtained huge award and started misusing judicial process so as to put pressure on Antrix and UOI to enforce the Award in question. This kind of Company cannot be permitted to misuse its name for ulterior purpose. (8) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r notice to the Company to be wound up unlike in the case of Registrar, who files Winding up Petition. As stated supra, the Tribunal, at the time of passing an Interim order on 19th January, 2021, has already granted reasonable opportunity to R1 Company through their Senior Counsels. The said Interim Order has become final. Instead of questioning the proceedings by Devas, it has indirectly filed an Appeal before Hon'ble NCLAT, Chennai by Devas Employees Mauritius Private Limited vide Company Appeal (AT) (CH) 02 of 2021. In pursuance to the order of NCLAT, after filing CA. No. 11 of 2021 for impleading, it has again resorted to filing W.P. No. 6191 of 2021 before the Hon'ble High Court of Karnataka, Bengaluru, which was dismissed with cost of Rupees Five Lakhs on 28.04.2021. Aggrieved by this order, it has again filed WA No. 519 of 2021 before the Hon'ble High Court of Karnataka. Shri Rajiv Nayar, while pleading urgency in the cases filed on behalf of Devas and its Shareholders Devas Employees Mauritius Pvt. Ltd., on the contrary, he is pleading and resisting the Tribunal to decide the case in order to achieve the illegal object of Devas to abuse process of law. (11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who are involved in the alleged misconduct, are scot free, which would go to show that no fraudulent actions have taken place in entering into Agreement in question, and their consequential actions etc., are concerned, it is not the case of Devas that appropriate action was not initiated against all erring officers, and in any case, it would not the help the case of Devas. Government may take appropriate disciplinary action against indicted officers in accordance with D A Rules, 1968, in due course of time. The allegation that the instant Petition is filed with an intention to stall enforcement of the Award in question is not correct, as the issue in the instant case, as stated supra, is whether Devas, which conducted its affairs in fraudulent manner since its inception is a fit case to continue its name on the Register of Registrar of Companies or not, to further facilitate it to perpetuate its fraudulent activities by abusing process of law, by way filing various cases in various courts situated in India and abroad, so as to force Antrix and Union of India, and to enforce the Award in question, which is questioned and subjudice before Hon'ble Delhi High Court. In this rega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... representative and ultimately, one K.R. Sridhar Murthy, Executive Director, signed on behalf of Antrix who is also accused in the criminal case. However, S.R. Gururaj signed on behalf of Devas. In this regard, it is relevant to point out here that the said Sree Ram Gururaj, known as S.R. Gururaj, was an Article Clerk of Shri M. Umesh, a Charted Accountant, who was one of Directors of Devas. During investigation, it is revealed that Gururaj was commerce graduate on the date of signing the Agreement and became CA Intermediate in 2007. Since 1997, he was an article clerk and left the job in April/May, 2008. He has given statement dated 15.01.2016 before CBI by stating that the Agreement was signed by him on the instructions of said M. Umesh, his boss. He has further confirmed that he was never an employee of Devas and he has received commission in token for signing the Agreement. Even the incorporation of Devas was made by two individuals namely D. Venugopal and M. Umesh and they are former employees of ISRO. 21. The above facts clearly establish that even the idea to incorporate Devas was with fraudulent intentions coupled with malafide objects to enter into Agreement with Antr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... up order, shall be proceeded with, by or against the company, except with the leave of the Tribunal and subject to such terms as the Tribunal may impose: Provided that any application to the Tribunal seeking leave under this Section shall be disposed of by the Tribunal within sixty days. (2) Nothing in sub-section (1) shall apply to any proceeding pending in Appeal before the Supreme Court or a High Court. Therefore, any orders passed in the instant case shall be subject to exercise of jurisdiction conferred on constitutional Courts viz., Hon'ble High Courts and Hon'ble Supreme Court of India. 24. We have carefully perused various judgments cited and relied upon by the Learned Senior Counsels for both the Parties, as mentioned supra. The Learned Senior Counsels for both the Parties have filed voluminous documents and cited various judgments, and most of those judgments are judgment per incuriam, and hardly have any ratio decidendi, which can apply to the facts and circumstances of the instant case. Therefore, the learned Senior Counsels who took so much pains to read selective paras, mostly related to those cases, in voluminous judgments, which however do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also pertinent to note that under sub-section (3) of Section 25 of the Indian Contract Act, 1872, a promise, made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorized in that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of suits, is a valid contract. Moreover, in the instant case, the appellant has submitted before us that the respondent, in his balance sheet prepared for every year subsequent to the loan advanced by the appellant, had shown the amount as deposits from friends. A copy of the Balance Sheet as on 31.3.1997 is also produced before us. If the amount borrowed by the Respondent is shown in the Balance Sheet, it may amount to acknowledgement and the creditor might have a fresh period of limitation from the date on which the acknowledgement was made. No. 3228 of 2020 is concerned Appeal in Civil: 57. In this appeal, the judgment of the NCLAT dated 07.02.2020 is assailed, in which the NCLAT has held that entries made in balance sheets of the corporate debtor for the years ending 2014-2015, 2015-2016, and 2016-2017 cannot amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the orders passed by the Courts below, the Petitioners have filed the above case before the Hon'ble Supreme Court of India, on various grounds as mentioned in the Petition. The instant Petition, as mentioned supra, is filed by Antrix (wholly owned Govt. Company) U/s. 271(c), after getting due authorisation vide Notification No. CGDL-E-18012021-224509 dated 18.01.2021. A Winding up Petition can be filed on several grounds as mentioned under provision 1 of Section 272 of the Companies Act, 2013. Therefore, consideration of the issue would depend on what ground the Winding up Petition is filed. Therefore, facts and circumstances as available in Jagnesh Shah (supra) would not be applicable to the facts and circumstances as available in the instant Company Petition. 29. In the case of Mediquip Systems (P) Ltd. vs. Proxima Medical System GMBH, (2005) 7 SCC 42, as stated supra, the initial Winding up Petition was filed U/s. 433(e) of the Companies Act, 1956 on the ground that the Company was unable to pay its debts. So this case is also does not support the case of Respondent No. 1/Devas, and it is misquoted. 30. Similarly, in the case of Pradeshiya Industrial Investment Corp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, when the validity of Award is under challenge before competent Court. When Devas continues to misuse legal status obtained by virtue of its incorporation as a Company, Antrix, after obtaining due sanction from the Government of India, has filed the instant Petition seeking to Wind up the Company. Even after filing of the instant Petition, instead of proving to the satisfaction of Tribunal that it is not liable to be wound up, as sought for by the Petitioner, Devas has started proxy war by approaching the Hon'ble NCLAT and Hon'ble High Court of Karnataka, through Devas Employees Mauritius Pvt. Ltd., by raising un-tenable grounds one after the other. Even after failing in its effort to stall the proceedings of this Tribunal, so many untenable contentions are raised on behalf of DEVAS, viz., there is no urgency in the matter, evidence has to be adduced, this Tribunal has no jurisdiction to decide the case unless all criminal cases pending are decided, filing several frivolous Interim Applications at every stage, threatening the Bench to exit from hearing of the case, making allegations that Bench has predetermined the issue etc. + 34. It is not in dispute that Devas i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied that the Petitioner fulfils the requisite conditions, as enumerated, under Section 271(1)(e) of the Companies Act, 2013, so as to pass orders to Wind up Devas by exercising the powers conferred on the Tribunal, under provisions of Section 273 of Companies Act, 2013. Therefore, the Tribunal is of the considered opinion that it is just and proper and equitable that R-1 Company/DEVAS should be wound up by appointing a Liquidator. 37. A statement of financial position and working results of Devas from 2010-11 to 2018-19, as per Balance Sheets and Annual Reports filed with Registrar of Companies, Karnataka, inter alia shows, revenue (sale of services) for the years 2011 to 2014 are a mere ₹ 79,115/ ₹ 58,429/ ₹ 36,489/- and ₹ 7,566/- respectively, and nil for the years 2015 to 2019. Similarly, its fixed assets are negligible and it is totally nil for the years 2018-19. A major part of money is being spent towards legal expenses. Therefore, the Liquidator appointed in the case is to be directed to take expeditious steps to liquidate the Company and to file appropriate Application seeking to dissolve R-1 Company/DEVAS. 38. In the light of aforesaid facts a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
