2019 (9) TMI 1390 - Tri - Companies Law

Recall of Order - operation of locker - wilful defiance of the order - Restraint from mortgaging or creating charge or lien or creating third party interest or in any way alienating, the movable or immovable properties owned by her, including jointly held properties and dealing with securities in any company - HELD THAT - Admittedly, Ramesh C. Bawa has transferred ₹ 4.84 crores on December 3, 2018 to Ms. Aakansha Bawa. As per the information gathered from SFIO, it has been pointed out that Aakansha Bawa is not filing her income-tax returns and as per her bank statement, there is no other source of income other than the amount so transferred from R. C. Bawa - The Union of India is alleging that the lockers were operated in wilful defiance of the order of this Bench dated December 3, 2018 and there is direct link between Mrs. Asha Kiran Bawa and IFIN, as the valuables purchased from the proceeds of misfeasance, which were sought to be transferred/alienated from the locker of an ex-director of IFIN, against whom complaint before the Special Judge for committing fraud in IFIN is filed, and is under adjudication. In the case in hand, undisputedly, the amount has been transferred from the account of Ramesh C. Bawa to the applicants account, and it is also on record that when the application was filed to freeze the accounts of R. C. Bawa, on the same date, i. e., on December 3, 2018 the amount worth ₹ 4.84 crores was transferred to the account of the applicant Ms. Aakansha Bawa, who is not even the income tax payee. It is also on record that amount of ₹ 27.67 crores has been transferred from the account of Ramesh C. Bawa to the account of the applicant Mrs. Asha Kiran Bawa, happens to be the wife of R. C. Bawa - It is also on record that the said amount which was received from the account of R. C. Bawa was further transferred to the account of the companies wherein the applicants are/were directors. The plaintiff remains the dominus litis. Order 1, rule 10 of the CPC provides discretionary power to the court. The IL and FS/IFIN case is one of the instances wherein ₹ 91,000 crores have been siphoned off, and SFIO investigation is undergoing. Father of Ms. Akansha Bawa who has been the director of IFIN is in judicial custody, based on the report filed by SFIO, and it is also on record that amount received from R. C. Bawa has been transferred to the accounts of the applicants. Therefore, they are a necessary party to the case. There is no justification for recalling the order passed by this Bench dated April 26, 2019 hence M. A. Nos. 2006 and 2007 of 2019 deserves to be rejected - Application dismissed.

Summary

Issues Involved:
1. Recall of order dated April 26, 2019, allowing impleadment and imposing restrictions.
2. Alleged wilful disobedience of Tribunal orders by transferring funds.
3. Operation of lockers allegedly containing "Stree Dhan" in violation of restraining orders.
4. Alleged mala fide actions by the Central Government.
5. Investigation and findings by the Serious Fraud Investigation Office (SFIO).

Issue-wise Detailed Analysis:

1. Recall of Order Dated April 26, 2019:
The applicants, Ms. Aakansha Bawa and Mrs. Asha Kiran Bawa, sought the recall of the Tribunal's order dated April 26, 2019, which allowed their impleadment in Company Petition No. 3638 of 2018 and imposed restrictions. The Tribunal noted that the National Company Law Appellate Tribunal had directed the applicants to seek vacation or modification of the interim order from the Tribunal itself. The Tribunal found no justification for recalling the order, emphasizing that the applicants were necessary parties to the case due to the significant amounts transferred to their accounts from Ramesh C. Bawa, ex-director of IFIN.

2. Alleged Wilful Disobedience of Tribunal Orders:
The Tribunal observed that substantial amounts were transferred from Ramesh C. Bawa's account to his daughter Ms. Aakansha Bawa on December 3, 2018, after the knowledge of the application and the order passed by the Tribunal. The Tribunal noted that these transfers were made despite the restraining order dated December 3, 2018, and January 16, 2019. The Tribunal concluded that the transfers were attempts to siphon off funds from the company, thus constituting wilful disobedience of the Tribunal's orders.

3. Operation of Lockers Allegedly Containing "Stree Dhan":
Mrs. Asha Kiran Bawa claimed that the lockers contained her "Stree Dhan" and were operated without any wrongful intention. However, the Tribunal found it unbelievable that "Stree Dhan," which is the absolute property of the wife, would be kept in lockers jointly held with her husband, Ramesh C. Bawa. The Tribunal noted that the lockers were operated on dates coinciding with the filing of applications seeking to freeze Bawa's properties, indicating an attempt to remove contents related to the proceeds of misfeasance.

4. Alleged Mala Fide Actions by the Central Government:
The applicants contended that the Central Government's actions were infested with mala fide intentions to harass them. However, the Tribunal found that the transfers and operations of lockers were not mere coincidences but deliberate actions to surreptitiously remove proceeds of misfeasance. The Tribunal emphasized that the restraining orders were necessary to prevent further dissipation of misappropriated funds.

5. Investigation and Findings by the Serious Fraud Investigation Office (SFIO):
The SFIO's investigation revealed that Mrs. Asha Kiran Bawa received approximately ?27.67 crores from Ramesh C. Bawa, which were further transferred to companies where the applicants were directors. Ms. Aakansha Bawa received ?4.84 crores on December 3, 2018, and had no other source of income. The SFIO highlighted the beneficial interest of both applicants in the fraud perpetrated on IL&FS and IFIN. The Tribunal noted that the SFIO's findings demonstrated the fraudulent manner in which Ramesh C. Bawa conducted the affairs of IFIN and justified the restraining orders.

Conclusion:
The Tribunal rejected M.A. Nos. 2006 and 2007 of 2019, finding no justification for recalling the order dated April 26, 2019. The Tribunal emphasized that the applicants were necessary parties to the case due to the significant amounts transferred to their accounts and the ongoing SFIO investigation into the misappropriation of funds in IL&FS and IFIN. The restraining orders were deemed necessary to prevent further dissipation of misappropriated funds.