2017 (3) TMI 1109 - HC - Companies Law

Lifting of corporate veil - Held that - The court is of opinion that the learned Single Judge, in lifting the corporate veil, to discern the real involvement of individuals who set up a network of corporate entities to evade their liabilities and also to dupe the innocent public, cannot be faulted. In the present case, the lifting of ARD and Yusuf s corporate veil was justified and warranted. Given that V.K. Sharma and Anita Sharma had shareholding in Yusuf to the extent of 97% (and Anita Sharma also had corporatized ARD after the liabilities arose) the SFIO s report was correctly appreciated in the impugned order. As far as D.K. Warehouse goes, it is significant to note that the application filed by Yusuf did not mention about an agreement to sell with it at all. Furthermore, the agreement is unregistered. It was entered into after the auction sale. There is nothing mentioned in the application to say that DK Warehousing had not inspected the properties, which had been attached, or that it had no notice of the court auction. In these circumstances, the court is of opinion that the learned Single Judge s conclusion that its claim to have purchased the property in a bona fide manner, after the auction sale, is without foundation.

Issues Involved:

1. Validity of the auction sale of the suit property.
2. Ownership and attachment of the suit property.
3. Allegations of fraud and lifting the corporate veil.
4. Rights of the auction purchaser versus claims of bona fide purchasers.
5. Jurisdiction and discretion of the Company Court under Sections 536 and 537 of the Companies Act.

Detailed Analysis:

1. Validity of the Auction Sale of the Suit Property:

The court examined the auction sale of the suit property conducted on 15.11.2011, where Manish Katyal emerged as the highest bidder. Yusuf Engineering Co (P) Ltd (YECPL) contested the sale, arguing that the property, owned by YECPL and leased to ARD, should not have been sold to satisfy ARD’s debts. The court, however, upheld the auction sale, emphasizing that the auction purchaser was a bona fide purchaser who paid the entire bid amount and that the sale was conducted following due process, including public notice and court supervision.

2. Ownership and Attachment of the Suit Property:

YECPL claimed ownership of the suit property, asserting that it was leased to ARD and not subject to ARD’s liabilities. The court noted that YECPL had acquired the property through a registered deed and that the property was attached in execution proceedings against ARD. The court found that the property was under the control of Mr. Vijay Kumar Sharma, the husband of Ms. Anita Jain (proprietor of ARD), and that the transfer of shares and control within YECPL was part of a scheme to defraud creditors. The court concluded that the property was rightly attached and sold in execution of the arbitral award against ARD.

3. Allegations of Fraud and Lifting the Corporate Veil:

The court delved into allegations of fraud involving Mr. Vijay Kumar Sharma and Ms. Anita Jain, noting their significant shareholding in YECPL and their history of fraudulent activities. The court referred to the Serious Fraud Investigation Office (SFIO) report, which revealed that funds from JVG Finance Limited (in liquidation) were used to purchase the suit property. The court justified lifting the corporate veil of YECPL to expose the true nature of ownership and control, concluding that YECPL was used as a front to shield the assets from creditors.

4. Rights of the Auction Purchaser versus Claims of Bona Fide Purchasers:

The court addressed the competing claims of the auction purchaser and D.K. Warehouse Pvt. Ltd, which claimed to have purchased the property from YECPL before the auction. The court emphasized the sanctity of judicial sales and the protection accorded to bona fide purchasers in court auctions. It held that the auction purchaser’s rights were superior, given the public notice and court supervision of the sale. The court found that D.K. Warehouse’s claim was unsubstantiated, noting the subsequent agreement to sell and lack of registration.

5. Jurisdiction and Discretion of the Company Court under Sections 536 and 537 of the Companies Act:

The court examined the applicability of Sections 536 and 537, which deal with the avoidance of transfers and sales after the commencement of winding up. The court noted that the winding-up order for JVG Finance Limited was made after the attachment and auction of the suit property. It upheld the Company Court’s discretion to validate the auction sale, emphasizing that the sale was conducted before the winding-up order and that the auction purchaser had deposited additional consideration as directed by the court.

Conclusion:

The court dismissed the appeals, upholding the auction sale and confirming the auction purchaser’s title to the suit property. It found that the attachment and sale were justified, given the fraudulent activities of the individuals involved and the need to protect the interests of creditors. The court also rejected the claims of D.K. Warehouse, emphasizing the precedence of judicial sales and the protection of bona fide purchasers in court auctions.

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