9911796707
TMI Blog2023 (1) TMI 1177X X X X Extracts X X X X X X X X Extracts X X X X ..... her - It was held in the said case that Under the provisions of Section 423, this Court is empowered to condone a delay (beyond the original period of limitation of 60 days) only to the extent of a further period of 60 days. Hence, since the appeal has been filed beyond the maximum period that can be condoned under the proviso to Section 423, the appeal cannot be entertained and is accordingly dismissed on the ground of limitation. There is no merit in the Appeal, the instant Appeal is hereby dismissed. - Company Appeal (AT) No. 105 of 2020 - - - Dated:- 25-1-2023 - [Justice Anant Bijay Singh] Member (Judicial) And [Ms. Shreesha Merla] Member (Technical) For the Appellant : Mr. Kamal Kant Jha, Senior Panel Counsel, G.O.I. for ROC, Mr. Avinash Singh, Ms. Priyanka, Advocates For the Respondent : Mr. Abhishek Kr. Rao, Mr. Shailesh Suman, Mr. Rishabh Sachdeva, Advocates Mr. Abhishek Nahta, PCA JUDGMENT Justice Anant Bijay Singh ; The instant Appeal was heard together with Company Appeal (AT) Nos. 106, 115, 116, 117, 202 and 203 of 2020. 2. Company Appeal (AT) No. 105 of 2020, in this Appeal, the Appellant has challenged the legality of the impugned ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 91/394 of the Companies Act, 1956 for a scheme of amalgamation of NKS Holdings Private Limited, a private company and Shri Niwas Leasing Finance Limited (SNLFL), a public listed company listed with the Delhi Stock Exchange. iii) The Registrar of Companies (RoC), Delhi objected to the scheme of amalgamation inter alia on the grounds:- a. That NKS, the transferor company had received subscription to its share of face value of Rs. 10/- per share at a premium of Rs. 90/- per share from 3 companies and against the total subscription of Rs. 1028 crore, one crore shares were allotted to 3 companies on 26.03.2011, just five days before the end of financial year; b. That the entire share subscription received by NKS was further invested immediately in the following companies- LIPL Rs. 287.19 crore MDPL Rs. 366.41 crore USPL Rs. 336.70 crore c. NKS had not done any significant activity barring the share capital infusion and consequent investment. NKS does not have any fixed assets as per the balance sheet for the period ending on 31.03.2011 and has recorded a loss to the tune of Rs. 8.41 lakhs but still commanding huge share premium. d. There appears to be circular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i; b. To examine the nature of the web of transactions between a set of companies resulting in creation of credits in bank account and use of such credits to subscribes the share capital, reserve and surplus and consequent investment worth Rs. 1000 crore in each of these companies. c. To analyze the scheme of amalgamation by NKS and SNLFL and examine the scheme is prejudicial in the interest of its member or the public interest. vi) The SFIO started investigation with the collection of reports from the RoC. The relevant documents such as MOA, AOA, Form 2, Form 20B, Form 32, Annual returns, Form 23 AC, Form 23 ACA maintained in MCA 21 portal, pertaining to SNLFL and NKS and other 9 companies under investigation were downloaded and analyzed. The SFIO team visited the registered office of the most of the companies and collected the documents. During investigation into the affairs of the companies, SFIO team learnt that RBI had conducted inspection in some of the Company under Investigation (CUI) and observed that most of these companies including the respondent company were carrying on Non-bank Financial Institution (NBFI) kind of activities without obtaining valid Certificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in money laundering activity is above board. A bare perusal of the balance sheet of the Respondent company reveals that during the period 2008-09, 2009-10, 2010-11, the Respondent company was not having sufficient income to impress upon the general public to purchase its shares at a high premium. A group of companies controlled by Jain Brothers namely Shri S.K. Jain and Shri Virendra Jain in connivance with one another hatched a criminal conspiracy and started purchasing the shares of beneficiary companies at a high premium to enable them to convert their black money into legitimate money for taking the commission giving accommodation entries. 5. It is further submitted that the Respondent Company is a body corporate and it never dies with the change of the management. In the present case, it appears that the management of the Respondent company got changed in the year 2015-16 but the revenue and the surplus amount which reflects in the balance sheet of company is outcome of the fraud and illegal activities. The SFIO was appointed for investigation of some of the companies of Jain Brothers who are mastermind of the all the organized crime of money laundering activities. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as a shareholder holding shares through corporate entities. As has been the modus operandi of Jain brothers, 49 group companies including the Respondent company were being controlled by Jain brothers. Presently as shown above, Jain brothers are indirectly holding influence in the company. Further, the Tribunal failed to take a holistic view of the facts presented before it regarding the money laundering activity carried out by the group companies promoted by Jain brothers and its adverse impact on the exchequer as well as on the economy. This order of the Tribunal will embolden the accommodation entry operators and purchasers of such accommodation entries like the present management in carrying out such activities in further also. Based on above submissions the impugned order is fit to be set aside and the Appeal be allowed. 8. The Ld. Counsel for the Respondent during the course of argument and in his reply affidavit along with written submissions submitted that the Tribunal vide order dated 18.12.2019 dismissed the petition on both grounds lack of sanction as well as on merit. The Tribunal held that facts of this case are identical to the case which was dismissed by this Be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India Vs. Apoorva Leasing Finance and Investment Co Ltd. and Another) wherein the Hon ble Supreme Court vide order dated 29.01.2021 passed the following orders: 1. The appeal under Section 423 of the Companies Act 2013 is filed with a delay of 166 days. 2. Under the provisions of Section 423, this Court is empowered to condone a delay (beyond the original period of limitation of 60 days) only to the extent of a further period of 60 days. Hence, since the appeal has been filed beyond the maximum period that can be condoned under the proviso to Section 423, the appeal cannot be entertained and is accordingly dismissed on the ground of limitation. 3. However, since we have not entered upon the merits of the controversy, it only needs to be clarified that the order of the NCLAT, which had come to the conclusion that there was a violation of the principles of natural justice in adhering to the provisions of Section 272(4) of the Companies Act 2013, will not come in the way of the appellant taking recourse to the remedies available in law after following due process. 4. Pending applications, if any, stand disposed of. 10. It is further submitted that in vie ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
