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2020 (12) TMI 187 - HC - FEMAPermission for Direct Investment in certain cases - Remittance of equity subscription/loan/corporate guarantee/bank guarantee or through other permitted mode - additional financial commitment in JSPML by way of equity subscription/loan/corporate guarantee/bank guarantee, etc. - Denial of grant permission to the petitioner to make additional commitment/payment - respondent have rejected the application of the petitioner and have not granted permission for making the additional financial commitment/payment of USD 300 million on account of the objection raised by the Enforcement Directorate - HELD THAT - Respondent RBI by a cryptic non-speaking order has rejected the application of the petitioner without giving any reasons whatsoever. The said order fails to give any reasons as to why the application of the petitioner is being rejected. The order has serious consequences for the petitioner inasmuch as the commitments undertaken abroad with the prior consent of the respondent would go into default causing huge losses to the petitioner. The reasons given latter in the counter-affidavit would normally not be accepted. It is settled position of law that the respondent cannot improve its case in this manner. In the reasons that have been given for rejecting the application of the petitioner, there is absolutely no reference to any of the aforesaid factors stipulated in Regulation 9(3) of the 2004 Regulations as a ground for rejecting the application of the petitioner. The criteria stated in Regulation 9(3) may not be exhaustive and other issues may be taken into account if facts so warrant. However, no such facts are stated by the respondent. It is manifest that the said order dated 30.12.2019 is wholly contrary to Regulation 9 in question. Can RBI, the respondent while dealing with an application filed under Regulation 9 reject the same at the behest of any other statutory agency like CBI, Enforcement Directorate, etc.? - only basis for passing the impugned order is the objections raised by the ED. It is settled position of law that an authority cannot share its power with someone else or allow someone else to dictate to it by declining an act or by submitting to their wishes or instructions. In this context reference may be had to the judgment of the Supreme Court in the case of Chintpurni Medical College Hospital Anr. 2018 (7) TMI 2153 - SUPREME COURT where the Supreme Court noted that the State Government appears to have withdrawn the essentiality certificate acting on the dictates of the Medical Council of India. The Court observed that this itself would vitiate the withdrawal of the essentiality certificate by the State. Hence, where the authority which is given to a functionary is exercised, at least in part, by the wrong authority, the resulting decision is ultra virus and void. Admittedly the commitments and transactions carried out earlier by the petitioner with its wholly owned subsidiary were done with the prior consent and permission of RBI. By the impugned order, RBI seeks to take a uturn and seeks to refuse permission to the petitioner to complete transactions which have already been cleared earlier by the respondent. No plausible explanation is sought to be given as to why this volte face has taken place except relying upon the communication received from the ED.Clearly, there is no explanation why RBI seeks to set at naught the earlier permission given in this manner. The matter is remanded back to RBI to reconsider the application made by the petitioner afresh as per law and in accordance with the principles noted above. Needful be done by RBI expeditiously. The transactions carried out pursuant to the interim orders of this court shall be treated as valid and in order
Issues Involved:
1. Territorial Jurisdiction 2. Non-joinder of Necessary and Proper Parties 3. Delay and Laches 4. Concealment of Material Information 5. Validity of RBI's Rejection Order 6. Adherence to Foreign Exchange Management Regulations Issue-wise Detailed Analysis: 1. Territorial Jurisdiction: The respondent argued that the Delhi High Court lacked territorial jurisdiction as the head office of the respondent (RBI) is in Mumbai and the petitioner was dealing with the Foreign Exchange Department, Central Office, Overseas Investment Division in Mumbai. 2. Non-joinder of Necessary and Proper Parties: The respondent claimed that the Enforcement Directorate (ED) was a necessary and proper party for the adjudication of the dispute. The respondent had declined the petitioner’s application due to objections from the ED, which stated that the petitioner’s proposal might result in non-availability of properties for attachment and jeopardize ongoing investigations. 3. Delay and Laches: The respondent contended that the petition suffered from delay and laches as the rejection of the application was issued on 30.12.2019, but the petitioner filed the writ petition only at the last minute. 4. Concealment of Material Information: The respondent accused the petitioner of concealing material information about ongoing investigations and enquiries by the ED, including investigations into offshore investments, unrealized export proceeds, purchase and sale of vessels, and purchase of aircraft. 5. Validity of RBI's Rejection Order: The RBI's order dated 30.12.2019 rejected the petitioner’s application to remit USD 300 million to its wholly owned subsidiary without providing any reasons. The court found this order to be a cryptic non-speaking order, which is untenable and contrary to Regulation 9 of the 2004 Regulations. The court emphasized that an order must provide reasons, especially when it has serious consequences for the petitioner. 6. Adherence to Foreign Exchange Management Regulations: The petitioner argued that under Regulation 6 of the Foreign Exchange Management (Transfer or Issue of Any Foreign Security) Regulations, 2004, it was entitled to make direct investments up to 400% of its net worth without RBI approval. However, due to ongoing investigations, the petitioner applied under Regulation 9, which allows RBI to grant approval even if the party is under investigation. The court noted that the existence of an investigation does not automatically debar an Indian party from making direct investments abroad. The court found that the RBI's rejection based solely on ED’s objections was improper, as the RBI must independently evaluate the application based on criteria in Regulation 9(3), such as the viability of the investment and the financial position of the petitioner. Conclusion: The court quashed the RBI’s order dated 30.12.2019 and remanded the matter back to the RBI for reconsideration in accordance with the law and the principles noted. The court also validated the transactions carried out pursuant to its interim orders and lifted the embargo on the petitioner’s assets.
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