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TMI Blog2023 (2) TMI 768X X X X Extracts X X X X X X X X Extracts X X X X ..... permission was granted to file the winding up petitions with immediate effect against the 49 Companies on the basis of the SFIO Report. However, there is nothing on record to suggest that before granting the permission/sanction for filing the instant Petition, compliance with second proviso to sub-Section (3) of Section 272 of the Companies Act, 2013 was made. The Counsel for the Respondent further submitted that the communication dated 29.08.2017 placed at page 62 of the Petition was sent to the Director, SFIO giving direction to forward copies of complete files to the RoC Delhi and the Inspecting Office was directed to coordinate to assist the RoC for filing the winding up petitions before NCLT, Delhi. It is submitted that the communication dated 29.08.2017 cannot be construed to be the permission granted to the RoC for filing present Petition. In short, there is nothing on record to establish that the ministry of Corporate Affairs has complied with second proviso to Sub-Section (3) of Section 272 of the Companies Act, 2013 before filing the Petition through the RoC concerned. 13. It is worthwhile to mention that CP No. 179/271-272/ND/2018 was filed against M/s Apoorva Leasing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion by SFIO, it was found that there were 49 companies including the Respondent Company which were being controlled by S.K. Jain and Virendra Jain (referred as 'Jain Brothers' in SFIO Report) and they were involved in money laundering activities by subscribing to the share capital of many beneficiaries during 2009-10. ii) Further case is that a joint petition bearing CP No. 127/2012 had been filed in the Hon'ble High Court of Delhi on 29.02.2012 under Sections 391/394 of the Companies Act, 1956 for a scheme of amalgamation of NKS Holdings Private Limited, a private company and Shri Niwas Leasing & Finance Limited (SNLFL), a public listed company listed with the Delhi Stock Exchange. iii) The Registrar of Companies (RoC), Delhi objected to the scheme of amalgamation inter alia on the grounds:- a. That NKS, the transferor company had received subscription to its share of face value of Rs. 10/- per share at a premium of Rs. 90/- per share from 3 companies and against the total subscription of Rs. 1028 crore, one crore shares were allotted to 3 companies on 26.03.2011, just five days before the end of financial year; b. That the entire share subscription received by NKS was furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dation of the Registrar of Companies, NCT of Delhi and Haryana under Section 234(6) of the Companies Act, 1956. v) On the basis of the order of MCA and technical security/RoC report under Section 234(6), the following issues were identified for detailed investigation while looking into the affairs of the companies under investigations:- a. To ascertain the nature of business of the companies under investigation and their modus operandi; b. To examine the nature of the web of transactions between a set of companies resulting in creation of credits in bank account and use of such credits to subscribes the share capital, reserve and surplus and consequent investment worth Rs. 1000 crore in each of these companies. c. To analyze the scheme of amalgamation by NKS and SNLFL and examine the scheme is prejudicial in the interest of its member or the public interest. vi) The SFIO started investigation with the collection of reports from the RoC. The relevant documents such as MOA, AOA, Form 2, Form 20B, Form 32, Annual returns, Form 23 AC, Form 23 ACA maintained in MCA 21 portal, pertaining to SNLFL and NKS and other 9 companies under investigation were downloaded and analyzed. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transactions. c) Cash/funds brought in by the mediators on behalf of the beneficiaries, details of entries given to various entities through the mediators, running accounts of the mediators the separate ledgers in their names, clearly indicate the role played by the professionals as mediators. The real nature of entries given. d) The Investigating team examined one of the cases of money laundering to find out how the Jain Brothers gave affect to the whole transaction. Accordingly, the case of M/s. Jagat Project Limited was taken as the lead and representative case to examine the modus operandi on the Jain Brothers which had running account of Sh. Rajesh Aggarwal in the cash of Jain Brothers along with the ledger account in his name pertaining to Jagat Projects, reflects regular inflow of cash before entries of share subscription made by USPL, SHL and SOHPL. e) Record of calculation of commission on the basis of entries of share subscription and receipt of the same by Jain Brothers, in the cash book and ledger accounts maintained by them. f) Reverse money trail preceding subscription of shares in Jagat Projects Ltd. through banking channel by USPL, SHL and SOHPL clearly show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thout having any purposeful business. The contents of the Modus-Operandi explained in the investigation report with regard to investment made in the Jagat Projects Pvt. Ltd. are not repeated here for the sake on brevity. The statement of Shri Surendra Kumar Jain recorded on 17.04.2014 during investigation reveals that he has accepted the utilization of all the 49 companies for rotation of money by providing accommodation entries to various parties. The said statement clearly shows Shri Jain was mastermind behind all the transaction carried out among all the 49 shell companies giving effect to his object laundering of unaccounted cash to various business through placement of funds, layering of transactions though many entities and then integration of the same back into the business of the beneficiaries by way of subscriptions to shares at huge premium. viii) After investigation of the NKS Holdings Private Limited and other group companies, SFIO arrived at the conclusion that 49 shell companies of Jain Brothers including the Respondent company were involved in providing accommodation entries to various beneficiaries and recommended for winding up the said companies to prevent any fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... during the period 2008-09, 2009-10, 2010-11, the Respondent company was not having sufficient income to impress upon the general public to purchase its shares at a high premium. A group of companies controlled by Jain Brothers namely Shri S.K. Jain and Shri Virendra Jain in connivance with one another hatched a criminal conspiracy and started purchasing the shares of beneficiary companies at a high premium to enable them to convert their black money into legitimate money for taking the commission giving accommodation entries. 5. It is further submitted that the Respondent Company is a body corporate and it never dies with the change of the management. In the present case, it appears that the management of the Respondent company got changed in the year 2015-16 but the revenue and the surplus amount which reflects in the balance sheet of company is outcome of the fraud and illegal activities. The SFIO was appointed for investigation of some of the companies of Jain Brothers who are mastermind of the all the organized crime of money laundering activities. In the year 2012, an amalgamation petition was filed in the High Court of Delhi at New Delhi and the objection of the Registrar of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... management is a flourishing legal one. These facts are factually and legally incorrect. The existence of a company is perpetual and not dependent upon its shareholders and changed management. Even if the Respondent is having a flourishing business, it does not mean that illegal acts committed by the Respondent in the past would be forgotten that too when the Respondent is still enjoying the amount wrongfully gained. 8. It is further submitted that the winding up petition was dismissed without examining and going into the details to know as to how the company transferred the accommodation entries to the different beneficiaries. The SFIO Report does not contain only one transaction against the Respondent as has been mentioned in the impugned judgment. The Investigating team examined one of the cases of money laundering to find out how the Jain Brothers gave affect to the whole transaction. The case of M/s Jagat Project Limited was taken as the lead and representative case to examine the modus operandi of the Jain Brothers. The SFIO Report also contains a list of those 49 companies including the Respondent which had given accommodation entries to a number of beneficiaries (Companies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leared. Xxxxx" 16. It is apparent that without giving reasonable opportunity of representation to Respondent No.1 the sanction has been granted that too without applying the mind thus we find no ground to interfere in the order passed by the NCLT. The appeal is dismissed. No order as to cost." 10. It is further submitted that the aforesaid decision of the Hon'ble NCLAT was challenged before 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)" wherein the Hon'ble Supreme Court vide order dated 29.01.2021 passed the following orders: "1. The appeal under Section 423 of the Companies Act 2013 is filed with a delay of 166 days. 2. Under the provisions of Section 423, this Court is empowered to condone a delay (beyond the original period of limitation of 60 days) only to the extent of a further period of 60 days. Hence, since the appeal has been filed beyond the maximum period that can be condoned under the proviso to Section 423, the appeal cannot be entertained and is accordingly dismissed on the ground of limitation. 3. However, since we have not entered upon the merits of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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