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TMI Blog2019 (9) TMI 1390X X X X Extracts X X X X X X X X Extracts X X X X ..... committing fraud in IFIN is filed, and is under adjudication. In the case in hand, undisputedly, the amount has been transferred from the account of Ramesh C. Bawa to the applicants account, and it is also on record that when the application was filed to freeze the accounts of R. C. Bawa, on the same date, i. e., on December 3, 2018 the amount worth ₹ 4.84 crores was transferred to the account of the applicant Ms. Aakansha Bawa, who is not even the income tax payee. It is also on record that amount of ₹ 27.67 crores has been transferred from the account of Ramesh C. Bawa to the account of the applicant Mrs. Asha Kiran Bawa, happens to be the wife of R. C. Bawa - It is also on record that the said amount which was received from the account of R. C. Bawa was further transferred to the account of the companies wherein the applicants are/were directors. The plaintiff remains the dominus litis. Order 1, rule 10 of the CPC provides discretionary power to the court. The IL and FS/IFIN case is one of the instances wherein ₹ 91,000 crores have been siphoned off, and SFIO investigation is undergoing. Father of Ms. Akansha Bawa who has been the director of IFIN is in j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the marriage ceremony of Ms. Aakansha Bawa. It is stated that a week before the order dated December 3, 2018 R. C. Bawa has issued instructions on November 26, 2018 to redeem the said securities to arrange funds for the wedding of Ms. Aakansha Bawa. The redemption amount of the said securities is said to have credited around November 30, 2018 in the account of R. C. Bawa. The amount is said to be transferred for the wedding purpose from the account of R. C. Bawa, to the account of Ms. Aakansha Bawa. 4. Ms. Aakansha Bawa has submitted in her application the bank statements of R. C. Bawa that reflects the amount being credited from the redemption of various securities and the same is said to be transferred to her account. Ms. Aakansha Bawa has stated in her affidavit in rejoinder dated July 13, 2019 that the amounts transferred by R. C. Bawa, were part of his duly disclosed income, and it cannot be said to be proceeds of misfeasance or an attempt to overcome the reliefs sought by Union of India in the application filed on December 3, 2018. It is submitted that the said amounts were kept by way of investments by R. C. Bawa and were transferred without any wrongful intentions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cember 4, 2018 December 10, 2018 and March 27, 2019. She was further restrained, in terms of the order of this Tribunal dated December 3, 2018 as modified by order dated January 16, 2019 from mortgaging or creating charge or lien or creating third party interest or in any way alienating, the moveable or immovable properties owned by them, including jointly held properties and dealing with securities in any company. 8. It is stated by Mrs. Asha Kiran that the said lockers were never used or operated by R. C. Bawa and she used these lockers to keep her Stree Dhan . It is stated that there is no prohibition to keep the Stree Dhan in a locker jointly owned with her spouse. The lockers are said to contain personal jewellery articles of Ms. Asha Kiran which, she submits, have been taken out, used and kept back. It is submitted that the order dated December 3, 2018 could not be interpreted to apply to operation of lockers and the banks also allowed her to operate the lockers in the absence of any communication from Union of India to the contrary, and accordingly, there was no occasion for Ms. Asha Kiran to approach this Tribunal seeking modification of its order dated December 3, 2018 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sha Bawa and IFIN as the proceeds of misfeasance which was transferred from the account of an ex-director of IFIN on the same day as an application was filed and served on R. C. Bawa. 12. The respondent has filed its affidavit in reply to M. A. No. 2007 of 2019 dated July 11, 2019 stating that the order dated December 3, 2018 extended to the said lockers as they are jointly held by R. C. Bawa and Mrs. Asha Kiran, and operation of the said lockers is contrary to and in willful disobedience of the order dated December 3, 2018. It is submitted that there is direct link between Mrs. Asha Kiran and IFIN as the valuables purchased from the proceeds of misfeasance which were sought to be transferred/ alienated from the locker of an ex-director of IFIN against whom complaint before the special judge for committing fraud in the affairs of the IFIN is filed and under adjudication. It is submitted that there is no explanation as to why the lockers were jointly held, if they were used to keep her Stree Dhan , which is the absolute property of Mrs. Asha Kiran. Further, it is submitted that both the lockers have been co-incidentally operated on the same date as on which the application for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Ltd. Further, the letter discloses that both the applicants are/were directors in AAA Infosystem P. Ltd., and Mashobra Farms P. Ltd. Where R. C. Bawa has given unsecured loans of ₹ 12,98,97,500 and ₹ 58,00,000 respectively. 15. The letter of the SFIO further mentions that R. C. Bawa had transferred ₹ 4.84 crores on December 3, 2018 to Ms. Aakanksha Bawa. It is pointed out that she has not filed any Income-tax return and as per her bank statements there is no other source of income than the amounts so transferred from R. C. Bawa. The respondent has submitted an e-mail from Assistant Director (Cost), SFIO dated July 15, 2019 stating that as on the date of the e-mail, there are no Income-tax returns filed by Aakansha Bawa and the same is confirmed verbally by Ms. Aakansha Bawa and her brother. 16. The applicants in their rejoinder have submitted that the letter of SFIO dated July 8, 2019 is not admissible as per the provisions of the Companies Act, 2013. The SFIO is said to be empowered to report for an investigation only after sanction and on approval in pursuance of following the procedure laid down in the Act. The said letter is said to be without authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same uninfluenced of its earlier order or in order passed by this Tribunal in other appeals. 20. In our order, this Bench has observed that On perusal of the record, it is clear that the amount from the account of Ramesh C. Bawa (respondent No. 315) has been transferred to the account of his daughter Ms. Aakansha Bawa on December 3, 2018, i. e., after the knowledge of the application and the order passed by this Tribunal. It is also clear that they have operated the locker in spite of the restraining order passed by this Bench on December 3, 2018 and January 16, 2019. Since the substantial amount from the account of respondent No. 315, has been transferred to the account of his daughter and wife, and the applicant alleges that the alleged amount which has been transferred, has been siphoned off from the company, in the circumstances, for proper adjudication of the case, we hereby allow M. A. No. 1576 of 2019 and pass an order for impleadment of Mrs. Asha Kiran Bawa and Ms. Aakansha Bawa as respondents Nos. 319 and 320 in the original Company Petition No. 3638 of 2018. 21. It is pertinent to mention that applicant Mrs. Asha Kiran Bawa, claims that the contents of the locker ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f from either bank to substantiate her alleged contention that only the applicant accessed the locker. (iii) make necessary averments about what was removed from the locker on December 3, 4, and 10, 2018 and March 27, 2019 and for what purpose and whether it was returned to the locker after use. 26. Director (Prosecution and Legal), appearing on behalf of Union of India has also emphasized that the applicant has stated that has there been any wrongful intention, then she would have cleared the locker on the very first day of the application, and would not have waited for the subsequent three times. In fact much to the contrary, the applicant's contention that the lockers comprise of her Stree Dhan is belied by the fact that Ramesh C. Bawa has filed an affidavit pursuant to the order dated December 3, 2018 categorically stating that the lockers are jointly owned by the applicant and Ramesh C. Bawa and not solely the property of the applicant. A copy of Mr. Ramesh C. Bawa's affidavit disclosing his properties, including jointly owned property is annexed with the reply as annexure A. 27. It is further stated by Union of India that the applicant in wilful defiance of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns were filed by her till date as confirmed verbally by her and her brother. However, the e-mail sent to them for submitting Income-tax return is still unanswered. 33. This e-mail has been sent by Rajesh Kumar T., Assistant Director (Cost), SFIO, MCA. From the above e-mail, it is also gathered that Ms. Aakansha Bawa is not filing her Income-tax returns. Ms. Aakansha Bawa has stated in her application that the bank statement of Ramesh C. Bawa reflects the amount being credited from the redemption of various securities and the same is transferred to her account. Ms. Aakansha Bawa has further stated in her affidavit in rejoinder dated July 13, 2019 that the amount transferred by Ramesh C. Bawa was part of his duly disclosed income and by a stretch of imagination can the same be said to be proceeds of misfeasance, as referred to by the Union of India. 34. It is also on record that Mrs. Asha Kiran Bawa received an approximate amount of ₹ 27.67 crores from Ramesh C. Bawa, and Mrs. Asha Kiran Bawa transferred the money to AAAB Infrastructure P. Ltd., and AAA Infosystem P. Ltd., wherein both the applicants are/were directors, and Ramesh C. Bawa has given unsecured loan of ͅ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of the accounts, then the siphoned off money will be out by the beneficiaries in whose account the siphoned off money has been transferred. 41. It is further stated that if the applicants are not a party in the case, then no restraint order can be passed against them and they will get the benefit of transferring the money and disposing of the other properties. 42. It is also emphasized by Union of India that SFIO is investigating on the huge details of the properties which have been acquired from the funds received from R. C. Bawa, who was a direct connection with IFIN. 43. It is pertinent to mention that in case of Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay [1992] 2 SCC 524 at page 528, the hon'ble court has held that : Sub-rule (2) of rule 10 gives a wide discretion to the court to meet every case of defect of parties and is not affected by the inaction of the plaintiff to bring the necessary parties on record. The question of impleadment of a party has to be decided on the touch stone of Order 1, rule 10 which provides that only a necessary or a proper party may be added. A necessary party is one without whom no order can be made ef ..... X X X X Extracts X X X X X X X X Extracts X X X X
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