2021 (4) TMI 994 - Tri - Companies Law

Maintainability of application - Direction to investigate the issue of fake four (4) no. of TDRs - seeking refund of money along with interest - HELD THAT - While the Respondent has denied receiving any instruction with respect to opening TDR accounts, it has not been denied that no such cheque had been issued to the Bank. We are, however, not convinced as to how a cheque issued in the name of Allahabad Bank can be deposited in the account of a third party - Prima facie, there seems to be an element of fraud in this case. An investigation with respect to the said purported fraud is already underway. This is clear from the letter of Assistant Commission of Police (I), Economic Offence Wing, Detective Department; Kolkata Police dated 05.02.2021, addressed to the Applicant herein that apprises the Applicant of the progress made in the FIR filed by the Applicant. Since, the investigation is already under progress and has reached the advanced stage where arrests have also been made; it would not be appropriate to issue direction upon the CBI to investigate the matter - This Tribunal can exercise its powers only as envisaged under the Companies Act, 2013. The said Act does not confer the power upon this Tribunal to direct the CBI to investigate a case. This Tribunal, therefore, cannot direct the CBI to investigate the case. The present application has been filed under section 290(n) of the Companies Act, 2013. That section empowers the company liquidator to apply to the Tribunal for such orders or directions as may be necessary for the winding up of the Company. The present application is not for winding up of the company and therefore, is also not maintainable under section 290(n) of the Companies Act, 2013. Direction upon the Respondent to refund the money - HELD THAT - We are not inclined towards granting the same since the same is the subject matter of the aforementioned investigation. The present application is not maintainable on any ground - Application dismissed as not maintainable.

Summary

Issues:
Application for direction to investigate fake TDRs and refund money.

Analysis:
1. The Official Liquidator filed an application seeking direction for investigating fake TDRs amounting to ?1,50,74,975 against a bank. The liquidator invested this amount in fixed deposits with the bank, but later discovered a fraud related to fake TDRs issued by the bank.

2. The Respondent bank denied receiving specific instructions to open TDR accounts for the stated amount. They claimed to act as per customer mandates and lodged an FIR regarding the fake TDR issuance. The bank argued that the liquidator should claim the money from the account holder where the sum was deposited based on the cheque instructions.

3. The Tribunal noted that the Applicant issued a cheque to the bank for opening fixed deposit accounts, but upon investigation, no such accounts were found. The Tribunal found elements of fraud in the case and acknowledged an ongoing investigation by the Kolkata Police Economic Offence Wing.

4. The Tribunal observed that arrests had been made, indicating progress in the investigation. Due to the advanced stage of the investigation and lack of authority to direct a CBI investigation under the Companies Act, the Tribunal dismissed the application. The Tribunal clarified that it cannot issue directions for CBI investigations and the application was not maintainable under the Companies Act.

5. The Tribunal concluded that the application was not maintainable and dismissed it, stating that any party could pursue CBI investigation through the appropriate court. The order was to be communicated to all parties, and a certified copy would be issued upon request.