2005 (4) TMI 302 - HC - Companies Law

Summary

Issues Involved:
1. Nature of the transaction between the petitioner and the respondent.
2. Whether the respondent-company owes a debt to the petitioner.
3. The respondent's defense regarding the equity application and allotment.
4. Legal implications of the RBI clearance and FERA regulations.
5. The maintainability of the petition based on the power of attorney.

Issue-wise Detailed Analysis:

1. Nature of the Transaction Between the Petitioner and the Respondent:
The petitioner, a non-resident Indian, remitted US $100,000 to the respondent-company, which he claims is a debt owed to him. The respondent argues the amount was for equity shares, not a loan. The court needed to determine the true nature of the transaction to decide the case.

2. Whether the Respondent-Company Owes a Debt to the Petitioner:
The petitioner argued that the amount is a debt since the respondent failed to return it despite a statutory notice under sections 433 and 434 of the Companies Act, 1956. The respondent countered that the amount was meant for equity shares. The court found that the respondent agreed to refund the amount if the petitioner did not wish to participate in the equity, as evidenced by the respondent's letter dated 3rd October 1996, which stated, "your initial remittance for issuance of equity amounting to US $ 1,00,000 will be refunded to you soon after the financial closure of the project."

3. The Respondent's Defense Regarding the Equity Application and Allotment:
The respondent claimed the petitioner did not complete the equity application process, thus no shares were allotted. The court noted that the respondent initially sent an incorrect form meant for Indian residents and later agreed to refund the amount. The respondent's subsequent claim that the form was sent inadvertently and that there was no prescribed form for foreign investors was deemed an afterthought.

4. Legal Implications of the RBI Clearance and FERA Regulations:
The court observed that the respondent-company did not have the necessary clearance from the Reserve Bank of India (RBI) to receive the funds as foreign equity. The respondent's request to treat the amount as an interest-free loan pending RBI approval, which the petitioner did not agree to, further complicated the matter. The court found no evidence of RBI approval or issuance of shares to other foreigners, reinforcing the petitioner's claim.

5. The Maintainability of the Petition Based on the Power of Attorney:
The respondent challenged the petition's maintainability, arguing that Mr. Yogesh Gulati, who filed the petition, did not have a valid power of attorney. The petitioner provided a power of attorney dated 16th July 1997, which was later confirmed and ratified by another power of attorney dated 18th October 2004, executed on proper stamp paper and attested by the Consulate General of India. The court found this sufficient to dismiss the respondent's objection.

Conclusion:
The court concluded that the respondent is indebted to the petitioner for US $100,000, along with interest, as the respondent had agreed to refund the amount. The court admitted the petition for hearing and directed the respondent to deposit Rs. 50 lakhs with the Registrar General of the court within six weeks, failing which the petitioner could proceed with the publication of citations. The appointment of a provisional liquidator was deferred.

Ordered accordingly.