2022 (1) TMI 134 - HC - Companies Law

Investigation into the affairs of the appellant company - Section 212(1)(a) and (c) of the Companies Act 2013 - complaints from the investors and continuous reporting in press and visual media about the fraudulent activities of the appellant company - Inquiry was ordered under Section 206 of the Companies Act by the Registrar of Companies - no opportunity of hearing as required under Section 206(4) of the Companies Act was granted to the appellant company - Central Government has formed any opinion or not keeping in view Section 210 of the Companies Act for directing investigation into the affairs of the appellant company - principles of natural justice. Opportunity of hearing - principles of natural justice - HELD THAT - Keeping in view the larger public interest the Inquiry was not conducted by the Registrar of Companies under Section 206(4) of the Companies Act. Proviso to subsection (4) of Section 206 of the Companies Act dispenses with other requirements of sub-section (4) of Section 206 of the Companies Act. The Inquiry under Section 206 of the Companies Act by the Registrar of Companies and the investigation under Section 212 of the Companies Act by the Serious Fraud Investigation Office (SFIO) operate in different fields and the information gathered by the Registrar of Companies under Section 206 of the Companies Act can be used as a tool for further investigation and an investigation under Section 212 of the Companies Act is in public interest and therefore the first ground argued by the learned counsel for the appellant company is of no help to the appellant company. In the considered opinion of this Court for ordering an investigation and further action by the SFIO under Section 212 of the Companies Act the requirement of obtaining a report of the Registrar of Companies is not at all warranted. The matter is only at the stage of investigation and otherwise also the appellant company has not been able to point out the prejudice caused to the appellant company in the matter. The respondents have adopted a transparent process. They have given an opportunity of hearing to the appellant company right from initial stages and the respondents are under obligation to follow the procedure prescribed under Section 212 of the Companies Act and the Companies Act is a complete code in itself. Appeal dismissed.

Issues Involved:
1. Legality of the investigation order under Section 212(1)(a) and (c) of the Companies Act, 2013.
2. Compliance with procedural requirements under Sections 206 to 208 of the Companies Act, 2013.
3. Formation of opinion by the Central Government under Section 210 of the Companies Act, 2013.
4. Impact of SEBI's ongoing inquiry on the investigation by the Serious Fraud Investigation Office (SFIO).

Issue-wise Detailed Analysis:

1. Legality of the Investigation Order under Section 212(1)(a) and (c) of the Companies Act, 2013:
The appellant company challenged the order dated 27.02.2020 issued by the Director General, Ministry of Corporate Affairs, which directed an investigation into the affairs of the company under Section 212(1)(a) and (c) of the Companies Act, 2013. The investigation was based on a report dated 24.02.2020 submitted by the Registrar of Companies (ROC) and was deemed necessary in the public interest due to serious allegations of fraud, including unauthorized pledging of client securities and diversion of funds. The court held that the ROC's report and the decision of the Oversight Committee justified the investigation, emphasizing the large public interest involved.

2. Compliance with Procedural Requirements under Sections 206 to 208 of the Companies Act, 2013:
The appellant argued that no opportunity of hearing was provided as required under Section 206(4) of the Companies Act. However, the court noted that the ROC had issued multiple notices to the appellant company, calling for information and documents. Despite the appellant's claims, the court found that the ROC had complied with the procedural requirements, including submitting a detailed report under Section 208, which recommended further investigation. The court concluded that the ROC's actions were in conformity with the statutory provisions.

3. Formation of Opinion by the Central Government under Section 210 of the Companies Act, 2013:
The appellant contended that the Central Government had not formed an opinion based on the ROC's report as required under Section 210 of the Companies Act. The court examined the order dated 27.02.2020 and found that the Central Government had indeed formed an opinion based on the ROC's report and other material, concluding that an investigation was necessary in the public interest. The court distinguished this case from previous judgments where the formation of opinion was found lacking, affirming that the statutory requirements were met in the present case.

4. Impact of SEBI's Ongoing Inquiry on the Investigation by SFIO:
The appellant argued that the investigation by SFIO should await the outcome of SEBI's ongoing inquiry. The court rejected this contention, noting that the scope and procedures of inquiries by SEBI and the Ministry of Corporate Affairs are different. Furthermore, Section 212(2) of the Companies Act mandates that once the Central Government assigns a case to SFIO, no other investigating agency should proceed with the investigation. The court emphasized that the investigation by SFIO was independent and necessary due to the serious nature of the allegations and the large public interest involved.

Conclusion:
The court dismissed the writ appeals, upholding the order dated 27.02.2020 for investigation by SFIO. It found no procedural irregularities or lack of compliance with statutory provisions. The investigation was deemed necessary in the public interest, and the court emphasized that the appellant company had not demonstrated any prejudice caused by the investigation. The court also noted the appellant's attempts to hinder the investigation process, reinforcing the need for a thorough and independent inquiry by SFIO.

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