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TMI Blog2023 (2) TMI 767X X X X Extracts X X X X X X X X Extracts X X X X ..... on record the decision dated 4th December, 2019 of the Hon'ble NCLAT in a connected matter viz. Registrar of Companies Vs. Apoorva Leasing Finance And Investment Company Ltd. dismissing the appeal filed by the RoC. The facts of this case are identical to the aforesaid case which was dismissed by this Bench vide order dated 18.01.2019 and is now upheld by the Hon'ble NCLAT. Since the facts of the present case are identical, there is no reason for this Bench to come to any other conclusion but to dismiss the present case. Accordingly, this petition is also dismissed on both grounds of lack of sanction as well as on merit. Ld. Sr. Panel Counsel for the RoC has apprised this Bench that the decision of the Hon'ble NCLAT is being impugned before the Hon'ble Apex Court. Needless to say that the RoC shall be entitled to seek restoration of this petition subject to the outcome of the proceedings before the Hon'ble Supreme Court." 3. The facts giving rise to this Appeal are as follows: i) The Appellant filed a winding up petition being CP No. 177/271-272/ND/2018 against M/s Attractive Fin-Lease Pvt. Ltd. (Respondent herein) before the NCLT, New Delhi on the basis of the SFIO Report ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) * Legend Infoways Private Limited (LIPL) * Microland Developers Private Limited (MDPL) * Utsav Securities Private Limited (USPL) * Aquarius Fincap & Credits Private Limited (AFCPL) * Shalini Holdings Limited (SHOL) e. Identities of the persons who are behind the whole trail of investments/web of cross investments in various companies could not be found out. f. All the companies and persons involved appear to be working in concert to create share capital, share application money, share premium and reserves and surplus in these companies just by creating accounting entries and circular transactions. Accounting entries thus created, are sought to be wrapped/adjusted by way of scheme of amalgamation. g. The allotment of large number of shares on a hefty premium without any justifiable business seems to be deliberate attempt to avoid payment of fees to the govt. exchequer under schedule X on increase in paid up share capital and authorized share capital. h. The transferee company is a listed company and out of the total 720 shareholders, 83% are individuals and the remaining 17% are body corporates. The scheme of amalgamation would result in drastic fall in individua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings have since been completed on the basis of these documents and post search investigations. ITD has recorded findings that Jain Brothers had been functioning as accommodation entry operators with/through 49 companies/entities under their control. The Investigation revealed that Jain Brothers were the 'Directing mind and will' behind the functioning of all 49 companies including the Respondent herein. vii) Based on these other averments, the Appellant preferred petition being CP No. 177/271-272/ND/2018 before the NCLT with following reliefs:- a. Issue/pass necessary directions/orders for winding up of M/s Attractive Fin-Lease Pvt. Ltd. in the public interest. b. Appoint Liquidator for taking over the assets of the Respondent company. c. Issue directions to the directors of the Respondent Companies to file statement of affairs showing the assets and liabilities with the Liquidator appointed by the Hon'ble Tribunal. d. Direct the respondents to maintain status quo in respect of the properties of the company and the respondent company be prohibited from dealing with the funds of the company except with the prior permission of this Hon'ble Tribunal. e. Restrain th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the money laundering activities came into the light. Resultantly, SFIO was appointed for conducting the investigation. During the course of investigation of certain companies, it revealed that the Respondent company was also one of those companies which were being controlled by Jain Brothers for committing the organized crime of money laundering. The SFIO submitted its report on 31.03.2016 and gave its recommendation for initiating winding up petition against all those 49 companies which were found involved in the crime. 6. It is further submitted that the letter dated 29.08.2017 is the letter of sanction to the Registrar of Companies and it was issued after due discussion, deliberation and application of minds. However, the letter has been addressed to the Director, SFIO and a copy thereof has been sent to the petitioner but the perusal of the letter dated 29.08.2017 reveals that the purpose of addressing the Director, SFIO was only to request him to assist the ROC to file the winding up petition be deputing the concerned IO who had conducted the investigation. Further, there is no any prescribed format for granting sanction in a particular manner. The word sanction means offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 2019 vide order dated 04.12.2019 which read hereunder: "15. This sanction order does not contain what are the allegations against the Respondent No.1 company and to substantiate the allegations what documents were placed before him. It is also not mentioned that before according sanction the company has been given reasonable opportunity of making representations. It is also not mentioned that the sanctioning authority prima facie satisfied with the allegations against the Respondent No.1 company. In this regard it is useful to cite the judgement of Punjab & Haryana High Court in the case of ROC Vs Suraj Bachat Yojna Pvt Ltd and Others 1973 (43) Comp Case 343. Though this case was under the old Act, 1956 but in substance the provisions of the new Act, 2013 are same. "5.xxxxx The legislature enacted a safeguard for the companies not to be harassed by frivolous or doubtful-of-success petitions for its winding-up by the Registrar in Section 439(6) of the Act by enjoining on the Central Government not to accord its sanction to the Registrar u/s 439(5) unless an opportunity is afforded to the company of making representations, if any. The delegate of the Central Government while ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon'ble Supreme Court, therefore, there is no merit in the Appeal, the instant Appeal may be dismissed. 11. After hearing the parties and going through the pleadings made on behalf of the parties and also the Judgment passed by Hon'ble three Member Bench of this Tribunal in the case of "Registrar of Companies Vs. Apoorva Leasing Finance & Investment Company Limited [Company Appeal (AT) No. 88 of 2019] dated 04.12.2019" which has attained finality as the Civil Appeal has also been dismissed by the Hon'ble Supreme Court in "Civil Appeal vide Diary No. 14952 of 2020 (Union of India Vs. Apoorva Leasing Finance and Investment Co Ltd. and Another)", we find that facts of the instant Appeal are same and identical to the case which was dismissed by this Appellate Tribunal vide order dated 04.12.2019 in the case of "Registrar of Companies Vs. Apoorva Leasing Finance & Investment Company Limited and Another". Therefore, we are of the view that there is no merit in the Appeal, the instant Appeal is hereby dismissed. 12. Registry to upload the Judgment on the website of this Appellate Tribunal and send the copy of this Judgment to the National Company Law Tribunal, New Delhi Bench, forthwith ..... X X X X Extracts X X X X X X X X Extracts X X X X
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