9911796707
TMI Blog2021 (6) TMI 198X X X X Extracts X X X X X X X X Extracts X X X X ..... sue in question, are as follows: (1) Antrix Corporation Ltd. (hereinafter referred to as "Petitioner/Antrix"), is a wholly owned Government of India Company under the administrative control of the Department of Space (hereinafter also referred to as 'DOS') and was incorporated on 28.09.1992, under the Companies Act, 1956. It is the commercial arm of the Indian Space Research Organization (hereinafter referred to as 'ISRO') and promotes and commercially markets the products and services emanating from the Indian Space Programs. (2) Devas Multimedia Pvt. Ltd., (hereinafter referred to as R1 Company/Devas) is a Company incorporated on 17.12.2004, having its registered office at First Floor, 29/1, Kaveriappa Layout, Millers Tank, Bund Road, Bangalore-560052, Karnataka, and registered with the Registrar of Companies, Bangalore under the Companies Act, 1956 with CIN:U92132KA2004PTC035261. The main objects of Devas to highlight the Company's intention to pursue digital multimedia services. Article 3 of the Articles of Association of the Respondent No. 1 provides the Authorized Share Capital and Paid-up Capital as Rs. 5 Lakh and Rs. 1 Lakh respectively, divided into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ell as the then Secretary to the Government of India in the Department of Space, and other government officials. Further, vide order dated 04.11.2020 passed by the Hon'ble Supreme Court of India in SLP (C) 28434 of 2018, the Arbitral Award dated 14.09.2015 was kept in abeyance till the adjudication of the matter before the Hon'ble High Court of Delhi. Furthermore, vide the same order dated 04.11.2020, the original Petition filed U/s. 34 of the Arbitration and Conciliation Act, 1996 by Antrix, challenging the Arbitral Award dated 14.09.2015, has been transferred from the City Civil Court, Bangalore. (6) It is stated that the case at hand, and the contract in issue, relates to the leasing of the scarce and valuable natural resource of the country, namely spectrum in the 'S' band to the Respondent No. 1 Company, for providing SDMB Services. The contract contemplates the launch and operation of two satellites for the purpose of involving financial expenditures and fees. The performance of a contract of this nature requires not only ample financial capability going into millions of dollars, but also the knowledge and possession of the requisite technology and knowhow. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s', from various government authorities, while seeking approvals for the project. As a matter of fact, a Cabinet Note dated 17/11/2005, put up for the consideration of the Union Cabinet, suppressed the existence of this contract, which had already been executed on 28/01/2005, and stated, instead, that ISRO was in receipt of "several firm expressions of interest" by different service providers for utilization of the satellite capacity. (7) The incorporation of M/s. Devas Multimedia Pvt. Ltd., is an initiative of a few former employees of ISRO, in particular Shri D. Venugopal and Shri M.G. Chandrasekhar. Shri D. Venugopal worked as a Scientist Engineer with ISRO and remained posted as Deputy Director, Satellite Communication Programme Office (SCPO) at ISRO HQ, Bangalore for 7 years from 1990-1997 and left ISRO in the year 1998. Shri M.G. Chandrasekhar worked as a Scientist Engineer with ISRO and left in the year 1998. One Shri Ramachandran Viswanathan, an American citizen, is the connecting bridge between former employees of ISRO and the then serving senior officials of DoS and Antrix. Shri Ramachandran Viswanathan, through a Company called Forge LLC, USA, brought into effect a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nology which has proved to be false by the Authorities of the Government of France, pursuant to a Letter Rogatory dated 07/11/2017 & it was confirmed that the IPR for Digital Video Broadcast- Satellite Handheld (DVB-SH) technology was granted to ETSI in Europe. DVB-SH is a hybrid technology and the services to be provided by the Respondent No. 1 Company could not have been rendered without this technology. Further, it was confirmed that the IPR which was granted as late as 2007, with subsequent second versions and technical revisions in 2008, 2010 and 2011, respectively, and Devas at no point of time, acquired the IPR or the right to use the IPR of this technology from ETSI. (11) The 'INSAT Coordination Committee' (ICC) and the Department of Space (DoS), were the competent authorities to allocate space segment spectrum. The ICC had not given any authority to the then officials of Antrix. Nonetheless, without any authority in this regard existing in the Applicant Company, the then officials of Antrix entered the contract dated 28/01/2005 in favour of the Respondent No. 1 Company for lease of spectrum. The contract dated 28.01.2005 was in complete violation of the 'Sate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tes, as high as Rs. 1.26 Lakhs per share, to foreign investors. Further, DT Germany, through DT Asia, after investing Rs. 430 Crores in Devas obtained only 19% shareholding in Devas. However, the four Mauritius investors after investing Rs. 150 Crores, obtained 37% shareholding in Devas. This split in shareholding defies any market practice especially when there is a huge difference in the amounts invested. Obviously, a Private Limited Company with a share capital equivalent to about USD 2200, not having the technical knowhow for the project, being able to obtain such huge sums for a part of its shares cannot be a genuine commercial transaction. Investments worth Rs. 579 Crores were brought in Devas, for which FIPB Approvals were sought. However, in all the FIPB applications, the reason for investment was stated to be the provision of "Internet Services". The rendering of SDMB services, which is a hybrid service, and the contract dated 28/01/2005 were concealed from the FIPB authorities. The Devas concealed the contract dated 28/01/2005 from the FIPB authorities knowing fully that the hybrid technology did not exist at the relevant time, and that it did not possess the required tec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he investors/shareholders worked hand in glove with the officials of Devas to commit the multiple FEMA violations and money laundering activities. The aforementioned Government servants, as well as private persons, who played instrumental roles in the incorporation of the Respondent No. 1 Company and the perpetuation of the fraud are accused in the criminal proceedings. Additionally, proceedings under the Prevention of Money Laundering Act are also underway, apart from the fiscal penalties already levied on Devas, its individual office bearers, as well as the foreign shareholders, under the Foreign Exchange Management Act. Further, based on investigations conducted in 2010-11, the RoC, Bangalore had issued a few show cause notices to the Respondent No. 1 and the same is before the Hon'ble Delhi High Court on a Petition filed by the Respondent No. 1 and the present proposal is not the subject matter of issue or dispute in the present proceedings. The entire picture relating the fraud and criminality in this case has come to light over a period of number of years, following detailed and thorough investigations and as a result, most of the aforementioned criminal and penal proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the agreement dated 28/01/2005, is a sham, with the objective of committing fraudulent and illegal activities including money laundering for the benefit all the shareholders of the Respondent No. 1 Company, the original owners and the owners of Forge LLC. The Respondent No. 1 Company had been in violation of the triple test as stipulated to avail the INSAT capacity allocated for the commercial sector namely sound business lines, on a "for profit" basis and consistent with the Government policies in the concerned user sectors. (21) The policy framework mandates Department of Space and other concerned regulatory authorities to inform, notify, coordinate, and register satellite systems and networks by and for Indian Private Parties following well defined and transparent norms and the SATCOM Policy mandates authorization only by the Indian Administration through its Ministries and Regulatory authorities. Antrix does not qualify as one falling under Indian Administration or a Department of the Government or a regulatory authority to inform/notify and coordinate and register satellite systems and networks by and for Indian private parties and no well-defined and transparent norms we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scene, it is imperative to state that doing any services involving broadcasting and telecommunication using spectrum and terrestrial mode requires step by step compliance involving various ministries and departments, (steps prescribed prior and post 09/06/2006) which included compliance even prior to entering into a lease agreement for a transponder for space capacity segment which had not been compiled by the Respondent No. 1 Company. Shankara Committee had no locus standi whatsoever, when the entire governance regime was only in the hands of the various Ministries, Department and the Wings of the Government. In the light of governing policies, norms, and procedures, Antrix did not have the locus standi to discuss the issue of leasing transponder capacity/space segment to the Respondent No. 1 Company but went ahead approving it and authorizing the Executive Director to sign it. (24) Further, the agreement on behalf of the Respondent No. 1 Company was signed by one Mr. Sree Ram Gururaj (S.R. Gururaj) and the same came to the knowledge of the investigating agencies that S.R. Gururaj was a commerce graduate on the date of signing the agreement and became a C.A. Since 1997, he was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f with Department of Space, the request was out rightly rejected thereby compromising security. While these requests were being made, the transponder capacity was already being allotted to the Respondent No. 1 Company vide the agreement dated 28/01/2005, through a well-organized conspiracy. (27) The Respondent No. 1 Company confirmed in the FIPB Applications that the proposed scope of services will only be value-based internet service involving contemporary indigenous technology, majority of which would be developed locally in India. It projected an employment graph commencing from a threshold of 90 and would be crossing a 1000 mark. None of this was even attempted to be achieved and the foreign investments were only brought in to be laundered abroad. The Respondent No. 1 Company also affirmed that the services would be Pan India. To show on record that the Respondent No. 1 Company is an ISP, the company appeared to have provided services between 25-35 people of Jayanagar, Bangalore for which one need not have to take FIPB approval and bring investments into India to the extent of Rs. 579 Crores, none of which was utilised for the rendition of ISP services. The types of services ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of hearing and hearing is provided so that there is a built-in threshold due to these severe consequences. (2) The scheme of the Companies Act regarding winding up U/s. 271(c) of the Companies Act is that the winding up Petition can be filed before this Tribunal only after an Application of mind by the Government or its agencies like Serious Fraud Investigation Office ("SFIO"), or Registrar of Companies ("ROC"), after an opportunity of the hearing is provided to a Company. Without following this procedure and without giving any pre-filing opportunity of hearing to the Respondent Company, the present winding up petition is not maintainable U/s. 271(c) of the Companies Act. The requirement of a pre-filing opportunity of hearing to the Respondent Company cannot be taken away by the Central Government by merely invoking Section 272(1)(e) of the Companies Act. (3) The Petition is mala fide and ought not to be entertained. The Respondent Company had initiated an arbitration proceeding under an Agreement dated 28.01.2005 between the Petitioner/Antrix and the Respondent Company ("Devas Agreement") and the same was illegally terminated by the Petitioner on 25.02.2011. Since the Devas A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elf in every forum as representing the Respondent Company, without defending its interests. He is acting in a manner whereby he is supporting the Petitioner in all forums. The provisional liquidator has once again filed various interim reports which only attempt to buttress the case of Petitioner without examining detailed facts. The conduct of the Provisional Liquidator can also be seen from order dated 30.01.2021 passed in CBI proceedings where Provisional Liquidator made a statement that he is not pursuing an application which was in the interest of the Respondent Company. The Respondent Company had filed an application for deferment of arguments on charges until the conclusion of investigation and other grounds. The Provisional Liquidator appeared and stated that he was not pressing the aforesaid Application. (6) The Petitioner is a wholly owned company of the Government of India. The sanction is being given by the Central Government to another arm of the Central Government itself, i.e., the Petitioner. The provisional liquidator is also a Central Government employee; therefore, the Central Government is being a judge in its own cause, which ought not to be permitted by this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a method of arm-twisting the Respondent Company to give up its claims in the arbitration and the ICC award there under. It appears that the sudden hurry to file the present winding up proceedings is to prevent the Respondent Company from pursuing its remedies in India and outside India including in Washington, where enforcement proceedings are pending on behalf of the Respondent Company. No adjudication has taken place by any competent court of law with respect to the alleged fraud. This Tribunal has no finding before it, to come to a conclusion that there has been any fraud by the officers of the Respondent Company or the company itself in terms of Section 271(c) of the Companies Act. (10) The allegations made in the Petition, including Para 13 and Annexure P-6 to the Petition are identical to the allegations raised by the Petitioner before the Hon'ble Delhi High Court in the arbitration proceedings. Further, this Hon'ble Tribunal being a Tribunal of summary jurisdiction cannot form any opinion unless the allegations of fraud are adjudicated upon by a court of law. Further, not only are the allegations pending adjudication before the Hon'ble Delhi High Court, but the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... errestrial use. The S-band in India was the last remaining frequency coordinated with the ITU for use in mobile satellite communications, the further diminution of the band was not tenable from DOS/ISRO perspective. Ultimately, after lengthy discussions with numerous DOS/ISRO/Antrix officials over a period of almost two years (including Dr. Madhavan Nair) a non-binding MoU was entered into between Forge Advisors and the Petitioner. Pertinently, Dr. Kasturirangan has not been charged with any criminal offence either under CBI, PMLA or Enforcement Directorate proceedings or in the arbitration proceedings in Hon'ble Delhi High Court. Therefore, it cannot be said that the negotiations between ISRO, Antrix and Forge Advisors were part of any conspiracy and/or a fraud. (14) Dr. K.N. Shankara, Mr. V.R. Katti and Mr. MYS Prasad, are not accused of any wrongdoing yet they were the ones who recommended the execution of the Devas Agreement. Therefore, no fraud can be alleged in the execution of the Devas Agreement. After lengthy discussions, the Devas Agreement was executed on 28.01.2005 and was duly signed on behalf of the Respondent Company by a person authorized to sign by the Respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same. It is clearly establishes that Antrix/ISRO wanted to utilize the S-Band which was very much within Antrix's main objects and the Respondent Company agreed to facilitate to commercially utilize the S-Band, a legal and bona fide business. The business and purpose of the Agreement was well within the Memorandum of Association of both the Antrix as well as Devas (the Respondent Company) and was a bona fide business activity. During the entire process, right upto entering the Devas Agreement, many persons including persons at the highest positions in the government/Antrix, were involved and it is not as if something was done secretly. In the board meeting of Antrix in which the Devas Agreement was approved, many directors were present who have not been made accused persons. Out of the said people, one Director was a working-IAS officers namely Mr. S.K. Das. (18) By not launching GSAT6-A by 01.07.2010, Antrix was in material breach of the Devas Agreement. The GSAT6-A satellite been launched by then, as it should have been under the Devas Agreement, the Respondent Company would have been in a position to, and would have, immediately rolled out its AV business while waiting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o "know whether people have downloaded the standard." (22) The Petitioner alleges that the Technical Advisory Group was "kept in the dark" about the Agreement which is simply false. Antrix's own investigation showed that TAG received a briefing on the deal in November 2004, months before the Agreement was concluded, and that this briefing took place after the High-Power Committee's review and recommendation endorsing the deal. In addition, TAG was apprised of Devas's technological developments through a presentation to TAG on 26.12.2008. (23) Antrix presents no evidence that Mr. Bhaskaranarayana acted fraudulently or unlawfully in writing the minutes circulated in October 2009. Indeed, the Respondent Company submitted its application for an experimental license to the WPC in August 2008. It is denied that Antrix is a victim of fraud and/or corruption as alleged or at all. On the contrary, the Respondent Company, its shareholders, officers and investors are victim of fraud which is described in the sequence of events. The Petitioner 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... objection are baseless and beyond the scope of law. The sanction is relatable to section 272(1)(f) of the Act and not related to the second proviso to Section 272(3) of the Act. The said proviso is applicable and confined only to the Registrar. (2) The bare reading of the Section 272(3) and the proviso of the Section clearly states that the same is not applicable to any other person as defined in 272(1)(f). The proviso cannot be extended far from the section or sub section and when the proviso is inserted with a particular sub-section and there is no ambiguity in the language with regard to its applicability. The interpretation of any statute or provisions is warranted when there is any ambiguity or no expressed intent is available, but in the present case the proviso being quoted by the Respondent is expressly applicable to the approval sought by the Registrar only. The Hon'ble Supreme court of India also held that a proviso is generally added to an enactment to qualify or create an exception to what is in the enactment, 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 gre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tity has taken away more than 250 Crores from the DMPL, though the foreign investment was allowed for the sake of developing the promised technology indigenously and for generating huge employment in India. The Respondent Company obtained license by making false claims but after receiving such approval and license they never did any significant business and only took away the money from India. (6) The Respondent No. 2 further states that around Rs. 500 Crores out of the total foreign investment to the tune of 579 Crores has taken out of the country for what cannot be called proper purpose. The fact of taking away the money and not deploying it for the stated purpose is a fact which is never disputed or denied by the ex-management of the R1 Company also. It is falsely represented by the ex-management of the Respondent Company that they were in the position to honour the agreement, but no substantial evidence was produced by the Company to support their claim. It is beyond comprehension that the company was granted 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... comply with law of land. (9) Further, the Registrar of Companies, Karnataka has submitted his report dated 12.02.2021, U/s. 272(5) of the Companies Act, 2013 stating that DMPL is liable to be wound up, and such a fraud company should not continue on the rolls of Registrar of Companies and has supported the winding up Petition. Further, the agreement between the Petitioner Company and the Respondent Company to provide the S-Band spectrum was illegal and voids ab-initio. (10) The Resource i.e. the spectrum is a scarce public good and the Government of India exercises control over this resource as trustee only. The Supreme Court of India had recognized the "Doctrine of Public Trust" and observed that the principal duty of the state, as trustee of public resources, is to protect the resources and use them for the benefit of the public. Any natural resource or public property which is of special consequence can be impressed with public trust only. It is important to highlight that the Government can only 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon by the Parties. 7. Shri N. Venkataraman, Learned ASG for the Petitioner, after arguing the case at length, has filed Written Submissions on 05.05.2021, by inter alia stating as follows: (1) The fraudulent actions of Respondent No. 1 fall squarely within provisions of Section 271(c) and the Petitioner has placed on record their submissions, documents, and arguments in support of the same, which go on to establish the fact that Devas was formed for a fraudulent and unlawful purpose and the affairs of the company have been conducted in a fraudulent manner. In fact, every action of Devas is fraudulent, and these acts of fraud are good enough reasons to wind up the Company under Section 271(c). And Clause 4 along with the Third and Fourth Recitals to the Antrix Devas agreement dated 28.01.2005 defines Devas Services and Additional Affidavit dated 07.04.2021 filed by Devas and the Rejoinder Affidavit dated 02.05.2021 by the Petitioner proves the act of 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d confirmed that they were owners and had IPR rights over the respective subjects and the Rejoinder Affidavit dated 02.05.2021 filed by Shri Rakesh Sasibhushan reiterates and had confirmed that Antrix through ISRO owns and also possess the rights over the satellites. Whereas Devas is taking a contradictory stand by saying Article 12(b) should be read as future discoveries. Such an interpretation is impossible to conceive since Article 12(b)(iv) uses an affirmative language "Devas has ownership and the right to use IPR". In the absence of ownership and possession of IPR rights, Article 12(b)(vi) would be rendered redundant and useless. The Additional Affidavit of Shri M.G. Chandrashekar dated 07.04.2021 maintains complete silence on Article 12(b)(vi). (5) There is no policy in place for Devas Services. There are no protocol licenses available in India which could have been issued for Devas Services. Likewise, even to lease a transponder satellite, 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 telecommun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mission, had in unequivocal terms made it clear that the license is only for ISP services and the list of shareholders has catalogued the list of shareholders whose 100% FDI will be only towards rendition of ISP services. There is a complete mismatch between the agreement dated 28.01.2005, the FIPB approval, the DoT licenses and section 2.3 of the share subscription agreement. (8) Further, when monies could not have been diverted for any other purpose other than ISP license, how did the shareholders allow the monies to be used for payment of upfront capacity fee for space segment capacity in S-Band transponders. It is a conceded fact that the 479 Crores diverted out of India is with the complete knowledge of the board and sent through banking channels outside India, 50% of which towards business support services without receiving any such services and the balance 50% towards litigation expenses when there was no litigation relating 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the fraud in August 2016. It is well-established law that only the petition has to be examined to determine whether it is within limitation. The Petitioner failed to disclose that the limitation to file a winding up is 3 years when the right to apply accrues. Furthermore, Section 433 of the Companies Act, 2013 provides that Limitation Act, 1963 is applicable to proceedings before this Tribunal. Section 17 of the Limitation Act, 1963 provides that when there is a fraud, the cause of action shall begin to run from the date the fraud is discovered. In this case, it is admitted that fraud was discovered in 2016. It may also be pertinent to point out that in the Hon'ble High Court of Delhi in OMP (Comm.) 11/2021 i.e., proceedings for setting aside the ICC Award, Petitioner has filed an amendment application dated 10.11.2016 stating that they have discovered fraud in 2016. (2) The Final hearing could only take place after 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 Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cretion to dispense with publication of advertisement. The words "if any" do not relate to the discretion to advertise but discretion to hear the company before directing advertisement. Therefore, in view of the aforesaid preliminary grounds, this Hon'ble Tribunal ought to pass a judgment on the aforesaid two preliminary issues raised by the R1 Company before proceeding on merits. (3) The entire argument of the counsel for Petitioner has been that the Agreement dated 28.01.2005 entered by Petitioner and R1 Company was obtained by fraud and detailed clauses were shown to this Hon'ble Tribunal saying that the Devas Agreement was a sham. In this regard, it is contended that the Tribunal has no jurisdiction to determine whether the Devas Agreement is fraudulent or not. This is being examined by CBI, Enforcement Directorate and to the extent permissible by the Hon'ble Delhi High Court hearing the challenge to the ICC Award. (4) The Counsel for Petitioner argued on 03.05.2021 that the R1 Company was formed with Rs. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en noticed or reported during the year. This Hon'ble Tribunal would know that the auditor finalizes a balance sheet from the information given by the company and the management. In any event, Petitioner never challenged the aforesaid statements. (6) In fact, in the balance sheets it is doubtful whether Petitioner is a going concern. It is Petitioner along with the Government which is playing a fraud on R1 Company. Since Petitioner has the liability of the ICC Award, ISRO has stopped giving any further work of leasing of transponder in a satellite, and/or for promotion and exploitation of space products etc., developed by ISRO and has incorporated a new company called New Space India Pvt. Ltd. and all new work is being diverted to this company. If a private person had done this, the Tribunal would have no hesitation in calling it a fraud. (7) It is correct that the Auditor has been informed 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 fra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing, Shri G.K. Agrawal, DWA Ministry of Science & Technology India Meteorological Department, Shri R.C. Bhatia, ADGM (Sat. Met); Dr. Sant Prasad, DOG (Sat. Met.), IMO; Shri A.K. Sharma, Director/IMD Ministry of Information & Broadcasting Doordarshan; Shri D.P. Singh, Director (Engg.); Shri J.M. Kharche, Dy. Director (Engg.). All India Radio; Shri Y.K. Sharma, Director, Engg. (TC); Smt. Ruchi Srivastava, Dy. Director (Telecom) 24 Department of Space Applications Centre, Shri K, Bandyopadhyay, Group Director, SAE INSAT Master Control Facility, Shri B.V. Kanade, GD, PUC, ISRO Satellite Centre INSAT Programme Office, Shri A. Bhaskaranarayana, Prog. Director, INSAT, ISRO HQ -Accused, Dr. S.V. Kibe, Dy. Director, IPO, ISRO HQ, Shri M.L. Hasija, Group Director, SEOG-D, SAC, New Delhi, Shri S. Sayeenathan, DD, FMO. As can be seen only three of the Members were accused in 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... misleading. If the Devas Agreement provided that all permissions have to be taken by the parties, then the allegation that no permission was taken is baseless. As can be seen from the terms of the Devas Agreement, the satellite was still to be built, launched successfully in orbit before the same could be leased. Parties had sufficient time to take all requisite permissions before the actual leasing of transponder. (15) In fact, R-1 Company, in order to undertake the experiment of its technology, applied for an experimental license to Wireless Planning and Coordination Committee ("WPC). Indeed, a successful experiment of Devas technology was achieved which was reported to WPC. Therefore, to presume that parties under the Devas Agreement would not have obtained permission is fallacious. On 7.05.2009, the WPC granted the R-1 Company a license to conduct 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Africa and in 2000 over India/Asia. Three key persons who were involved in the establishment of fully operational World Space system including radio receivers designed and built in India by BPL, India, R1, Mr. Venugopal and Ram Viswanathan and a host of other technocrats and engineers who also worked at R1 Company. (19) The Petitioner filed a rejoinder dated 02.05.2021 alleging that the affidavit of the ex-Director of R1 Company does not deal with two-way interactive services. The R1 Company filed a sur-rejoinder dated 04.05.2021 stating that initially the allegation of Petitioner was that that DVB-SH technology was only patented in 2007 and, therefore, in 2005 there was no technology for rendering Devas services as defined in the Devas Agreement. It is in these circumstances that the Respondent Company dealt with the allegation of DVB-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- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d its company completely and correctly in its application to the FIPB. Nowhere did R1 Company pledge to the FIPB or any other government agency that its sole raison d'etre would be provisioning of internet services--whether basic or value add. R1 Company properly disclosed to the FIPB that the Company was a dynamic, revolutionary provisioner of satellite and hybrid-based multimedia platforms, and that as a part of its technology it would be bringing Internet to hundreds of millions of Indians. (22) It is settled law that fraud cannot just be presumed, it must be proved. So even it is proved that FIPB approval/ISP does not cover Devas Services it cannot prove fraud for which other ingredient of fraud i.e., its knowledge must be proved. Therefore, it must be first proved that FIPB approval/ISP did not cover 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commission, ISRO and Petitioner at the relevant time and had been involved in negotiations with Forge LLC. Additionally, the Petitioner has failed to disclose all minutes and resolution of space Commission and Petitioner. Therefore, without the same no finding can be returned that these issues were placed before the concerned authorities. (26) Further allegation has been made by Petitioner in its written submissions that incorporation of Devas subsidiary in America namely Devas Multimedia America Inc. ("DMAI") and making payment for business support services is also fraudulent. The allegation is preposterous as it can be understood if a shareholder or creditor makes such an allegation, Petitioner has no locus to make this allegation. In any event, it was with the approval of the board of directors 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 ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontext of advertisements. A reading of Rule 5 in the 2020 Rules would indicate that the expression used regarding advertisement is 'if any'. Therefore, under the 2020Rules, this Tribunal has the discretion to dispense off with advertisement if it deems fit on the facts and circumstances of each case. Therefore, on this very ground, the plea of Devas that advertisement is mandatory must fail. Further, under the erstwhile 1959 Rules, under Rule 24(2), the Judge had a discretion to dispense off with the requirement of advertisement. This discretion was permitted only in non-winding up cases. Under the 2020 Rules, there is no corresponding provision which mandates advertisement of a winding up petition. Therefore, on this ground also, the plea of Devas on advertisement 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the same before the City Civil Court in November 2016. CBI did not stop with the first charge sheet; it went on investigating the various elements of fraud that had happened at various points of time based on which it filed a supplementary charge sheet on 08.01.2019. The CBI had issued Letters of Rogatory to various nations seeking particulars of these transactions including in Singapore. When these documents could have been issued by the appropriate authorities, one of the shareholders had taken the matter to Court in Singapore, as a result of which exchange of information is getting delayed in connection with the money trails, beneficial owners and the attendant fraudulent activities. This Hon'ble Court appointed a provisional liquidator on 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... company. Several judgments were also cited in support of the proposition that winding up must be the last resort and this Hon'ble Tribunal must explore other options. It is well settled principle of law that it is not permissible to go beyond the language of the statute. (9) It is neither a case of afterthought nor a case of delay. Even though the ICC Award was issued on 14.09.2015, it was Devas who had obtained the stay as clearly held by the Hon'ble Supreme Court vide its order dated 04.11.2020 and the moment stay was vacated and direction was given for the Delhi High Court to hear the matter, the Petitioner had moved the necessary application to bring on board the aspects relating to fraud to declare even the ICC Award as a nullity. (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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e this Hon'ble Tribunal, the Division Bench of the Hon'ble High Court declined the request and allowed the Tribunal to proceed with the matter and adjourned the writ appeal to 12.05.2021. Consequently, the learned Senior Counsel for Devas appeared before this Hon'ble Tribunal and completed arguments. Now, to further frustrate the proceedings Devas had moved the present I.A seeking for cross examination of the officials of Antrix. This request for cross examination, when the proceedings are about to get closed is filed out of sheer desperation and one intended to clearly frustrate the ongoing Tribunal proceedings. (14) The Petitioner has produced their arguments on SATCOM Policy and the same had also submitted as 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 neithe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rao Dagdu Paralkar v. State of Maharashtra and Ors.. xvii. Shrisht Dhawan v. M/s. Shaw Brothers 1992 1 SCC 534. xviii. Venture Global Engineering v. Tech Mahindra Limited 2018 1 SCC 656. xix. Center for Public Interest Litigation v. Union of India, passed by Hon'ble Supreme Court of India 2012 3 SCC 1489. 10. Since the instant Petition is filed Under Sections 271 and 272 of Companies Act, 2013, it is necessary to extract Section271 of Act, which reads under: "271. "A company may, on a petition under section 272, be wound up by the Tribunal:- (a) if the company has, by special resolution, resolved that the company be wound up by the Tribunal; (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia broadband casting services across India. In return, Devas agreed to pay to Antrix Upfront Capacity Reservation Fees (UCRF) of USD 20 million per satellite, and lease fees of USD 9 million to USD 11.25 million per annum. The lease term was twelve years, with a right of renewal at reasonable lease fees for a further twelve years. (4) The said Agreement dated 28th January, 2005 was terminated by Antrix, vide proceedings No. Antrix/07/85 (02/2011) dated 25th February, 2011 with immediate effect mainly on the ground that the Central Govt. has communicated its policy decision as not to provide orbital slot in S-Band to it by invoking 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding from investors and trials relating to Devas' operating system were conducted successfully. In June 2010, however, Dr K.R. Radhakrishnan the Chairman of Antrix as well as the Secretary of India's Department of Space (DOS) and Chairman of the Indian Space Research Organization (ISRO) (an entity that sits under the DOS) and India's Space Commission sought and obtained legal advice about annulling the agreement. Devas says he did so in response to political pressure that had been created by media criticism of the Devas Agreement; Antrix says he did so because India's military needed to use the 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 entitl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subject matter of the existing agreements. In accordance with Article 7(c) of the Agreement, it is declared that Antrix is unable to obtain the necessary frequency and orbital slot coordination as stipulated in the Agreement. Without prejudice to the inability expressed under Article 7(c), notice of force majeure as defined in Article 11, is expressed. The policy decision of the Central Government acting in its sovereign capacity is the event of force majeure, which has occurred on 23rd February 2011. The force majeure commenced on 23rd February 2011. The scope and duration of 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." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ves all of its rights including under Indian law and international law." (9) Antrix may terminate this Agreement in the event, Antrix is unable to obtain the necessary frequency and orbital slot coordination required for operating PS1 on or before the completion of the Pre-Shipment Review of the PS1. In the event of such termination, Antrix shall immediately reimburse Devas all the Upfront Capacity Reservation Fees and corresponding service taxes received by ANTRIX till that date. Upon such termination, neither Party shall have any further obligation 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d are Indian Companies. Hence, the manner in which the Devas resorted to invoking Arbitration was not bona fide and not fair, and the same was resorted to in perpetuation of its fraudulent as were being resorted to from the date of its incorporation. 16. Though the validity of Award is subjudice before Hon'ble High Court of Delhi, the Tribunal is only examining the issue to the extent of fraudulent intention/manner on the part of Devas, in order to adjudicate the issue in question in the instant Petition. In this context, it is relevant to extract 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. Accordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 28th April, 2021, with a cost of Rs. 5 lakhs. And not satisfied with this order, it has again filed W.A No, 519 of 2021 with an intention to stall the present proceedings. However, the Hon'ble High court has refused to pass any interim orders, as insisted. 19. The main contentions raised by Shri Rajiv Nayar, are being dealt with, in the following paragraphs: (1) With regard to question of limitation in filing this instant petition, it is to be mentioned here, as stated supra, the fraudulent intentions of Devas, prior and 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lent manner etc., in terms of Section 271 of the Companies Act, 2013. Therefore, the contention raised that this Tribunal has no jurisdiction is misconceived and not tenable. (3) With regard to the contentions that the Agreement in question was terminated illegally and unlawfully resulting in initiation of action by each Shareholders against the Government of India; the money in question was admittedly used for the payment of lawyers and did not go back into the pockets of the shareholders; no question of any money laundering; 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 Account ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estrial Digital Multimedia Broadcasting to small user terminals in Japan and South Korea and Japan while using a geo-stationary satellite; the founders of R1 Company and the engineers working on Devas system were fully involved in the implementation 35 World Space service-the pioneers in satellite digital radio which started service in 1998 over Africa and in 2000 over India/Asia; three key persons who were involved in the establishment of fully operational World Space system including radio receivers designed 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ropriate orders as per law". (10) The serious contention of Shri Rajiv Nayar, that Antrix has not given prior opportunity to Devas before filing the instant Company Petition is concerned, as rightly contended by Shri N. Venkataraman, learned ASG, plain reading of provisions of Section 272 of the Act, would show that any Company, person, any contributory or contributories etc., with due authorisation by Central Government, can file Winding Up Petition. There is no requirement to give prior 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 K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the ICC Court has already taken ample evidence about the basic facts of the case and the relevant observations and finding of Arbitral Tribunal are already taken into consideration by the Tribunal in the instant case. Therefore, the issue can be decided based on the sufficient rather voluminous documentary evidence produced by the Parties. Therefore, the plea to call for evidence is un-tenable and baseless. (13) With reference to the contention that several of officers Antrix, 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an Company having its registered office at 102, Eden Park, 20, Vittal Maliya Road, Bangalore 560001, India hereinafter referred to as 'DEVAS' (which expression shall unless excluded by or repugnant to the context be deemed to include its legal representatives, successors in interest and assigns of the OTHER PART." There is no mention in the above recital as to who is authorised representative on behalf of Devas. Only Antrix cited Executive Director as its 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the Tribunal is competent to pass Winding up orders by conjointly reading Sections 271, 272 & 273 of Companies Act,2013. The effect of Winding up order passed by the Tribunal is dealt with Under Section 278 of the Companies Act, 2013, which reads as follows: "279. (1) When a winding up order has been passed or a provisional liquidator has been appointed, no suit or other legal proceeding shall be commenced, or if pending at the date of the winding 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the liability to M/s. Prayagchand Hanumanmal within the meaning of Section 18 of the Limitation Act, 1963 and extend the period of limitation for the discharge of the liability as debt....." Likewise, in a case concerning the dishonour of a cheque under Section 138 of the Negotiable Instruments Act, 1881, this Court, in A.V. Murthy v. B.S. Nagabasavanna (2002) 2 SCC 642 ["A.V. Murthy"], held: "5. It is 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 ackn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng up Petition was filed before the Hon'ble High Court, U/s. 433(e) of Companies Act, 1956, on the ground that the Company was unable to pay its debts. Subsequently, it was transferred to Hon'ble NCLT to take up the case under the extant provisions of Code. Accordingly, Hon'ble NCLT has admitted the case U/s. 7 of the Code, which was upheld by the Hon'ble NCLAT too. Aggrieved by 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 Mediqu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in question, it has continued to misuse process of law to its advantage. It has successfully taken Arbitration out of Country contrary to terms of Agreement. And even without permitting Antrix/Government to take appropriate course of action on the Award, it has precipitated the issue by initiating various proceedings before Indian and Foreign Courts for enforcement of the Award in question, 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onceived. 36. For the aforesaid reasons and circumstances of the case, the law on the issue, we are of the considered view that the Petitioner has established its case beyond doubt that the incorporation of DEVAS/R-1 Company was made in a fraudulent manner and for unlawful purposes. Its management is continuing to resort to fraudulent activities, as detailed supra. We are satisfied 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 Rs. 79,115/ Rs. 58,429/ Rs. 36,489/- and Rs. 7,566/- respectively, and nil for the years 2015 to 2019. Similarly, its fi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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