2019 (2) TMI 1050 - HC - Companies Law

Winding up petition - Power of Bank to file winding up petition - Whether feasible scheme for revival available, the power under Section 45-MC could be exercised for winding up? - HELD THAT - An appeal will lie only if it is so provided in the statue. Its scope and procedure shall be as is provided there. The power, to grant or not to grant an interim order or the extent to which an interim order can be granted or an automatic stay of the impugned order, would be governed by the language of the Statute. In sub-section 7 there is nothing, which provides for an automatic stay of the impugned order, on filing of an appeal before central government. Sub-section 7 only provides that the order of RBI shall be final, in case an appeal is filed against the same, on the appeal being finally decided. But, that is a case with any appeal, whether such a line is there or not in the statue. If an appeal is filed against an order, the impugned order becomes final only on final disposal of the appeal. But the same would not mean that such an order will not be given effect during the pendency of appeal, unless stayed by the appellate court. If this interpretation, as submitted by Sri Mathur, is accepted, than no stay order would be required in any appeal, as the order under appeal will become final only on final disposal of the appeal and, thus, a stay order will have to be presumed. Such can not be the interpretation of sub section 7. Thus this submission of Sri Mathur is also rejected. The order of RBI remains operative, as there is no stay order passed in the appeal of SIFCL, till now. As per first proviso to Section 434 (1)(c), only such winding up proceedings are to be transferred which are covered by the Transfer Rules, 2016 and since, the present winding up proceedings, as already found, are not covered by the aforesaid rules, the same are saved from being transferred. From the above, it is clearly indicated that the SIFCL is repeatedly using dilatory tactics to somehow scuttle the hearing of the case. Therefore, satisfied that a mere warning would not suffice to send a strong message. Thus, looking into the conduct of SIFCL, impose a cost of ₹ 5 Lakhs upon the Directors of SIFCL collectively, which they shall deposit within 30 days from today with the State Legal Services Authority of this Court at Lucknow and produce a receipt of its payment to the Senior Registrar of this Court within the aforesaid period of 30 days. In case of failure on their part to deposit the said cost, it shall be open for the Senior Registrar of this Court to proceed against them and recover the costs as arrears of land revenue. For the reasons and findings already given above, as satisfied that a case on all the four grounds of Section 45MC-1 of the RBI Act is made out against SIFCL. A case for advertising the petition in accordance with Rule 24 of the Companies (Court) Rules, 1959 is made out. Hence, petitioner RBI is directed to advertise the petition in accordance with Rule 24 of the Companies (Court) Rules, 1959. The notice of the petition be advertised as per rules in two newspapers namely Hindustan Times in English and in Hindustan in Hindi in their Lucknow editions. The petition shall also be published in the official gazette of the State fixing 02.04.2019 as the next date of hearing of the petition. The petitioner shall also file an affidavit of service in compliance of the aforesaid directions by the next date fixed. To preserve the assets of the company, the Official Liquidator attached to this Court is appointed Liquidator provisionally of Sahara India Financial Corporation Limited (SIFCL) together with all its assets, papers, books of accounts, documents and files etc. He is directed to proceed forthwith and take charge of all properties and effects of the company and its management. SIFCL and officers of SIFCL/all persons concerned are restrained from operating any bank account of SIFCL and its funds without leave of this Court till Official Liquidator takes charge. SIFCL is directed to fully co-operate with the Official Liquidator in smooth and immediate handover, as directed above.

Issues Involved:
1. Grounds for filing a winding up petition by RBI against SIFCL.
2. Compliance with RBI directions and statutory regulations by SIFCL.
3. Maintainability of the winding up petition.
4. Authority to file the winding up petition.
5. Impact of pending appeal against RBI's order.
6. Request for transfer of proceedings to NCLT.
7. Conduct of SIFCL during the proceedings.

Detailed Analysis:

1. Grounds for Filing a Winding Up Petition by RBI Against SIFCL:
The Reserve Bank of India (RBI) filed a winding up petition against Sahara India Financial Corporation Limited (SIFCL) under Section 45-MC of the RBI Act, claiming that SIFCL was unable to pay its debts, disqualified under Section 45-IA, prohibited from receiving deposits, and its continuance was detrimental to public interest and depositors. The RBI had found that SIFCL's deposit-taking activities were not in conformity with prudent practices and RBI directions, leading to a prohibitory order and subsequent cancellation of its Certificate of Registration (CoR).

2. Compliance with RBI Directions and Statutory Regulations by SIFCL:
RBI inspections revealed multiple violations by SIFCL, including maintenance of directed investments, payment of prescribed interest rates, adherence to Asset Liability Management (ALM) guidelines, and Know Your Customer (KYC) norms. Despite repeated advisories and show cause notices, SIFCL failed to transition out of the RNBC model and comply with RBI directions. The statutory auditors also reported significant violations, including unauthorized sale of directed investments and diversion of funds.

3. Maintainability of the Winding Up Petition:
SIFCL argued that the petition was not maintainable as there was no written satisfaction recorded by RBI before filing the petition. The court held that the winding up petition could not be dismissed on this ground alone, as the RBI could place the necessary record before the court to substantiate its satisfaction. The court emphasized that the ultimate decision on the winding up petition rests with the court based on the material presented.

4. Authority to File the Winding Up Petition:
SIFCL contended that the petition should have been filed by an authorized officer of RBI. The court referred to the Krishi Export case, where it was held that a petition filed by a Deputy General Manager of RBI was maintainable. In the present case, the General Manager who issued the show cause notice and received the reply from SIFCL was deemed competent to file the petition.

5. Impact of Pending Appeal Against RBI's Order:
SIFCL claimed that the pending appeal against the cancellation of its CoR rendered the RBI's order non-final and inoperative. The court disagreed, stating that there was no provision for automatic stay of the RBI's order merely on filing an appeal. The court noted that the appeal had not been entertained or heard for admission, and no stay order had been issued.

6. Request for Transfer of Proceedings to NCLT:
SIFCL filed an application for transferring the winding up petition to the National Company Law Tribunal (NCLT) under the second proviso to Section 434(1)(c) of the Companies Act, 2013. The court rejected the application, noting that the present proceedings were under Section 45-MC of the RBI Act, not the Companies Act, 1956. The court found no bona fide reason for the transfer request, especially after extensive arguments on merits had already been heard.

7. Conduct of SIFCL During the Proceedings:
The court observed that SIFCL had repeatedly used dilatory tactics to delay the proceedings, including changing counsels and raising objections at the last moment. The court imposed a cost of ?5 lakhs on the directors of SIFCL for their conduct and directed them to deposit the amount with the State Legal Services Authority.

Conclusion:
The court found that all four grounds under Section 45-MC(1) of the RBI Act were made out against SIFCL. The RBI was directed to advertise the petition, and the Official Liquidator was provisionally appointed to take charge of SIFCL's assets and management. The case was scheduled for further hearing on 02.04.2019.

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