2013 (2) TMI 284 - HC - Companies Law

De-register the filings - change in name - treat the filings made by respondent no.3 under Registration No.F/202 as null and void - directing Respondent Nos.1 and 2 to initiate prosecution under the Indian Penal Code against the respondent No.3, 4 and 5 - Mr. Vashisht senior counsel for the petitioner sought to contend that the said filing was not the one made to inform the ROC about the change in name but was made to inform the ROC about the change in the constitution of the Board of Directors referring letter dated 22.07.1996 filed by respondent no.3. - Held that - It is possible that author of letter dated 22.07.1996 read first part of clause (d) of section 593 in a manner, which was disjunct from the latter part of clause (d). As would be noticed, the first part refers to the name and the second part refers to address . It is possible that the author of the letter was of the view that apart from the change in the constitution of Board of Directors which came within the ambit of the provision of clause (c) of section 593, the intimation with regard to the change in name fell within the first part of clause (d) of section 593. Admittedly, there was no change in the address of the entity, which was entitled to accept service on behalf of respondent no.3, which is a foreign company within the meaning of the Companies Act. Consequently, the reference ought to have been to clause (a) of section 593 and not clause (d) of the section 593. This was an obvious error, which was sought to be explained by Sh. Brij Mohan Chhabra in his affidavit of 04.01.2005. Thus the averment to the effect, made by Sh. Chhabra that this was a typographical error can be accepted having regard to the aforesaid aspects. That apart, the accompanying documents, to which reference has been made i.e., the receipt by which fee was deposited dated 05.08.1996, the letter addressed to the ROC dated 17.05.1996 and the permission granted by the RBI in April, 1996 is demonstrable of the fact that there was no good reason for respondent no.3 not to furnish requisite information of change of name to the ROC. There is no denying that respondent no.3 had also intimated this very information to its customers, its clearing agents and world at large between March and April, 1996. Therefore, even if it is assumed that information in the duplicate Form 49, which was filed on 03.04.2002, was inserted on the said date, will not, take away the body of material placed by the official respondents i.e., respondent nos.1 and 2 as also by respondent no.3, to establish that the original Form 49 was filed on 05.08.1996. This brings to the last aspect of the matter i.e., the argument as to why yet another Form was filed on 05.04.2004. The conduct of respondent no.3 in this regard is explained by reference to ROC s letter dated 26.03.2004, whereby they were advised to file a revised duplicate Form by an authorised person to rectify the objections. It is quite possible that having received the said communication, respondent no.3 filed yet another Form on 05.04.2004. Therefore, as long as there is nothing to suggest that the original Form 49 was not filed on 05.08.1996, the subsequent filings would not carry the matter any further in so far as the petitioner is concerned. It is not as if the ROC cannot allow rectification or curing deficiencies, if any, in the information supplied by the applicant companies, to it. This power is available to the ROC and therefore, that by itself cannot further the cause of the petitioner unless one could come to a conclusion that there was no filing made in the first instance by respondent no.3. Having regard to the discussion above unable to come to a conclusion that any of the prayers made in the petition ought to be granted. The petition is devoid of merits and is accordingly dismissed with cost of Rs.1 Lakh. Rs.50,000/- will be paid to respondent nos.1 and 2 while the balance sum of Rs.50,000/- will be paid to respondent no.3.

Issues Involved:
1. Validity of filings made by respondent no.3 under Registration No.F/202.
2. Compliance with Sections 592, 593, and 599 of the Companies Act, 1956.
3. Initiation of prosecution under the Indian Penal Code against respondents no.3, 4, and 5.
4. Maintainability of recovery proceedings by respondent no.3 before the Debt Recovery Tribunal.
5. Allegations of forgery and fabrication of documents by respondent no.3.
6. Application of the principle of res judicata.

Issue-wise Detailed Analysis:

1. Validity of filings made by respondent no.3 under Registration No.F/202:
The petitioner sought a writ to declare the filings made by respondent no.3 under Registration No.F/202 as null and void and to de-register all such filings. The court examined the filings and found that respondent no.3 had made requisite filings with the Registrar of Companies (ROC) and the Reserve Bank of India (RBI) following the merger and change of name. The court noted that the ROC had issued communications indicating non-availability of the document showing compliance with Section 593 of the Companies Act. However, respondent no.3 filed duplicate Form 49s to reconstruct the record, supported by a receipt dated 05.08.1996.

2. Compliance with Sections 592, 593, and 599 of the Companies Act, 1956:
The petitioner argued that respondent no.3 failed to comply with Section 593, rendering it ineligible to maintain recovery proceedings. The court found that respondent no.3 had indeed filed Form 49 on 05.08.1996, as evidenced by the receipt and other documents. The court accepted that the original filing might have been lost, but the subsequent filings were made to rectify the record. The court concluded that there was no evidence to suggest non-compliance with the provisions of the Companies Act.

3. Initiation of prosecution under the Indian Penal Code against respondents no.3, 4, and 5:
The petitioner sought criminal prosecution for alleged forgery and fabrication of documents. The court noted that investigations by the Economic Offences Wing and the Magistrate found no cognizable offence committed by respondent no.3. The Magistrate's order dismissing the petitioner's application was upheld by the Additional Sessions Judge, who also imposed costs on the petitioner. The court found no grounds to initiate prosecution under the IPC.

4. Maintainability of recovery proceedings by respondent no.3 before the Debt Recovery Tribunal:
The petitioner challenged the maintainability of recovery proceedings on the grounds of non-compliance with the Companies Act. The court noted that the Debt Recovery Appellate Tribunal (DRAT) initially found respondent no.3 disqualified under Section 599 of the Companies Act. However, the Karnataka High Court set aside the DRAT's order, and the Supreme Court dismissed the petitioner's special leave petition on both delay and merits. The court concluded that respondent no.3 was entitled to maintain recovery proceedings.

5. Allegations of forgery and fabrication of documents by respondent no.3:
The petitioner alleged that respondent no.3 fabricated documents, specifically Form 49. The court examined the affidavit of Sh. Brij Mohan Chhabra and found that any interpolations were made to reconstruct the lost record, not to commit forgery. The court accepted the explanation provided by respondent no.3 and found no evidence of fabrication or forgery.

6. Application of the principle of res judicata:
Respondent no.3 argued that the issues raised were barred by res judicata, having been previously adjudicated by the Karnataka High Court. The court agreed, noting that the petitioner had raised similar issues before the Karnataka High Court, which were rejected. The court found that the present petition was an attempt to re-agitate the same issues, constituting an abuse of the process of court.

Conclusion:
The petition was dismissed with costs of Rs.1 Lakh, divided equally between respondent nos.1 and 2, and respondent no.3. The court found no merit in the petitioner's claims and upheld the validity of the filings made by respondent no.3, compliance with the Companies Act, and the maintainability of recovery proceedings. The allegations of forgery and fabrication were rejected, and the principle of res judicata was applied to bar re-litigation of the issues.

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