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2024 (2) TMI 246

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..... re advanced against mortgages and securities furnished by the borrowers. Moreover, due to alleged complaints, the Government functionaries have already set in motion and necessary inspections have been carried out by NHB. The Ministry of Corporate Affairs is also in the process of further investigation. In the considered opinion of this Court, due to articles published in magazine and newspaper, the tweets made by member of the petitioner-firm or a Member of Parliament, the share holders of accused-companies were jolted and they were made to suffer huge losses. It is settled position of law that the jurisdiction of investigation lies within the realm of investigating agency and a Court has no authority to interfere in the investigation until and unless there is grave miscarriage of justice or misuse of process of law. The investigation has to be transferred to CBI or SIT or any other agency only in exceptional cases and not as a matter of routine. There is no dispute to the position that necessary investigation in the present case has already been carried out by NHB and also the Ministry of Corporate Affairs is in the process of further investigation. Finding no merit in the .....

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..... Act, 2013, Rules and Regulations of Reserve Bank of India (RBI), SEBI, National Housing Bank and other laws. 4. The petitioner further alleged that the respondent No. 7 and the companies owned by its promoters have been involved in round tripping of funds in violation of the relevant laws and policy guidelines and they have also not disclosed sources thereof and their books of account also do not show the true state of affairs. However, the authorities concerned have failed to do any investigation into these allegations/reports and take required action against them, which poses serious risk and threat to the public interest. 5. The petitioner has also alleged that the respondent - IBHFL group, and the group of companies owned by it i.e. India Bulls Real Estate, Indiabulls Commercial Credit, Indiabulls Ventures, Indiabulls Infra Power and scores of other privately held companies, with their ownership divided between the partners, has a net worth of over Rs. 75,838/- crores, as per its website. 6. According to the petitioner, the IBHFL group of companies has 220 branches in 100 cities across India, which is regulated by the National Housing Bank (NHB). IBHFL contributes 80 .....

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..... unt borrowed and the security given to the lender company, within 30 days of its transaction. The said Section reads as under: 77. Duty to register charges, etc.- (1) It shall be the duty of every company creating a charge within or outside India, on its property or assets or any of its undertakings, whether tangible or otherwise, and situated in or outside India, to register the particulars of the charge signed by the company and the charge-holder together with the instruments, if any, creating such charge in such form, on payment of such fees and in such manner as may be prescribed, with the Registrar within thirty days of its creation: Provided that the Registrar may, on an application by the company, allow such registration to be made (a) in case of charges created before the commencement of the Companies (Amendment) Act, 2019, within a period of three hundred days of such creation; or (b) in case of charges created on or after the commencement of the Companies (Amendment) Act, 2019, within a period of sixty days of such creation, on payment of such additional fees as may be prescribed: Provided further that if the registration is not made within .....

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..... r the FY 2016-17 is annexed herewith as Annexure P6. 30.50 2. Americorp Business Services Pvt. Ltd. A copy of Balance Sheet of the Americorp Business Services Pvt. Ltd. for the FY 2015-16 is annexed herewith as Annexure P7. 32.40 3. Chennai Business Park Pvt. Ltd. A copy of Balance Sheet of the Chennai Business Park Pvt. Ltd. for the FY 2017-18 is annexed as Annexure P8. 50.00 4. Americorp Capital Pvt. Ltd. A copy of Balance Sheet of the Americorp Capital Pvt. Ltd. for the FY 2015-16 is annexed as Annexure P9. 39.00 Total 151.90 The petitioner also gave the details how the money note herein above has been funded back to Indiabulls:- Sr.No. Name of the Investee Company Name of the Investor Company Invested Amount (Rs. In crore) 1. Indiabulls Ventures Limited A copy of Annual Report of the .....

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..... Entertainment Limited for the FY 2017-18 is annexed as Annexure P18 156 3. Reliance Big Entertainment Pvt. Ltd A Copy of Financial Statement of Reliance Big Entertainment Pvt. Ltd for the FY 2016-17 is annexed as Annexure P19 210 4. Reliance Communications Enterprises Pvt. Ltd. 200 5. Reliance Interactive Advisors Pvt. Ltd. A copy of details of charges registered with ROC of Reliance Interactive Advisors Pvt. Ltd. for the FY 2017-18 is annexed as Annexure P20 908 Total 1580 According to petitioner, how amount of Rs.570 crores out of the afore-noted funds has been invested back to the Indiabulls of companies, is as under:- Sr.No. Name of the Borrower Name of the Lender Loaned Amount (Rs. In crore) 1. Iphito Properties Pvt. Ltd. (a subsidiary of Indiabulls Pvt. Ltd) A copy of Index of Ch .....

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..... Sr.No. Name of the Company Year Loaned Amount (Rs. In crore) Current Status 1. AC Realty Spaces LLP 2017-18 19.50 A copy of balance sheet FY 2017- 18 of AC Realty Spaces is annexed herewith as Annexure is annexed herewith as Annexure P33. 2. Built To Live Realty LLP 2017-18 450 This loan was repaid with money Mahalunge Land Developers borrowed from IBHFL. A copy of Balance Sheet of Built To Live Realty FY 2017-18 is annexed herewith as Annexure P34. 3. Mahalunge Land Developers LLP 2017-18 740 A copy of Balance Sheet of Mahalunge Land Developers FY 2017-18 is annexed herewith as Annexure P35. Total 1209.550 IV. Vatika Group Companies: Petitioner averred that Vatika Group of Companies has as many as 51 companies with paid-up capital of Rs. .....

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..... ers Pvt. Ltd. 0.01 26 17. Lestin Developers Ltd. 0.01 24 18. Hadar Developers Pvt. Ltd. 0.01 42 19. Bellium Developers Pvt. Ltd. 0.01 46 20. Bacon Developers Pvt. Ltd. 0.01 34 21. Edrea Developers Pvt. Ltd. 0.01 30 22. Hagrid Developers Pvt. Ltd. 0.01 29 23. Sirius Developers Pvt. Ltd. 0.01 41 24. Kelsey Developers Pvt. Ltd. 0.01 29 25. Polillo Developers Pvt. Ltd. 0.01 19 26. Perseus Developers Pvt. Ltd. 0.0 .....

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..... 28 47. Kepa Developers Pvt. Ltd. 1.01 185 48. Aspire Promoters Pvt. Ltd. 0.02 100 49. Fermina Developers Pvt. Ltd. 148.91 50. Sh Tech Park Developers Pvt. Ltd. 0.13 222.50 (Rs.32 crore received from Indiabulls Infrastructure) 51. Sahar Land Housing Pvt. Ltd. 50.30 Total 4601.01 With regard to the Vatika Group Companies, the petitioner further averred that 40 of its companies were operating from Flat No.621-A, 6th Floor, Devika Towers 6, Nehru Place, New Delhi, which shows that IBHFL did not doubt diligence while granting huge loans to these promoters. The petitioner has alleged that none of these companies filed Charges with the MCA and for many of these companies, ownership was transferred afte .....

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..... he SC) 2. Cadence Builders Constructions Pvt. Ltd. 143 84.64 100% Subsidiary of Atherol Builders Developers Pvt. Ltd. Loaned money used to purchase land and advance loan to related party. A part of the land is acquired again by the government at a higher compensation. (Charges filed on June 11, 2019 after PILwas filed in the SC.) 3. Alana Builders Developers Pvt. Ltd. 83 44.30 100% subsidiary of Atherol Builders Developers. Loaned money used to purchase land and advance loan to related party. (Charges filed on June 11, 2019 after the PIL was filed in the SC) 4. Cadence Real Estates Pvt. Ltd, 74 34.95 100% subsidiary of Atherol Builders Developers. Loaned money used to purchase land and advance loan to related party. (Charges filed on June 11, 2019, after the PIL was filed in the SC.) 5. C .....

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..... 12. Aaralyn Builders Developers Pvt. Ltd. 47 29.91 100% subsidiary of Atherol Builders Developers. Loaned money used to purchase land and advance loan to related party. (Charges filed on June 6, 2019.) 13. Garv Developers Pvt. Ltd. 17 1.89 100% subsidiary of Ananti Builders Construction. Loan money received from group companies used to purchase land and advance loan to related party. 14. Naja Builders Developers Pvt. Ltd. 111 49.32 100% subsidiary of Ananti Builders Construction. Loan money received from group companies used to purchase land and advance loan to related party. The company has invested Rs.22 crore in EMU Realcon, a company owned by Sameer Gehlaut. (Charges filed on June 11, 2019 after the PIL was filed in the SC, charges satisfied on June, 24. 15. Mohak Real Estate Pvt. Ltd. .....

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..... on. Loan money received from group companies used to purchase land and advance loan to related party. Compensation received from LAC, Haryana. (Charges filed on June 11, 2019 after the PIL was filed in the SC; charges satisfied on June 24.) 21. Talvi Builders Developers Pvt. Ltd. 100 59.23 100% subsidiary of Ananti Builders Construction. Loan money received from group companies used to purchase land and advance loan to related party. Compensation received from LAC, Haryana. (Charges filed on June 11, 2019 after the PIL was filed in the SC; charges satisfied on June 24.) 22. Abheek Real Estate Pvt. Ltd. 83 22.91 100% subsidiary of Ananti Builders Construction. Loan money received from group companies used to purchase land and advance loan to related party. Compensation received from LAC, Haryana. (Charges filed on June 11, 2019 after the PIL was filed in the SC; charges satisfied on June 24.) 23. .....

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..... oan to related party. Compensation received from LAC, Haryana. (Charges filed on June 13, 2019 after the PIL was filed in the SC; charges satisfied on June 24.) 29. Rajika Estate Developers Pvt. Ltd. 31 20.67 100% subsidiary of Felicite Builders Construction. Loan money received from group companies used to purchase land and advance loan to related party. Compensation received from LAC, Haryana. (Charges filed on June 11, 2019 after the PIL was filed in the SC; charges satisfied on June 27.) 30. Karena Estates Developers Pvt. Ltd. 19 15.83 100% subsidiary of Felicite Builders Construction. Loan money received from group companies used to purchase land and advance loan to related party. (Charges filed on June 13, 2019 after the PIL was filed in the SC; charges satisfied on June 24) 31. Afaaf Builders Developers Pvt. Ltd. 30 12.86 100% subs .....

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..... charges satisfied on June 24.) 38. Laxmibanta Estates Developers Pvt. Ltd. 37 30.83 100% subsidiary of Felicite Builders Construction. Loan money received from group companies used to purchase land and advance loan to related party. (Charges filed on June 13, 2019 after the PIL was filed in the SC; charges satisfied on June 24) 39. Arlie Builders Developers Pvt. Ltd. 90 52.08 100% subsidiary of Felicite Builders Construction. Loan money received from group companies used to purchase land and advance loan to related party. (Charges filed on June 13, 2019 after the PIL was filed in the SC; charges satisfied on June 24) 40. Fabrizio Real Estates Pvt. Ltd. 29 24.17 100% subsidiary of Felicite Builders Construction. Loan money received from group companies used to purchase land and advance loan to related party. (Charges filed on June 13, 2019 after the PI .....

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..... s by the EMU Realcon which are as under:- Sr.No. Name of the Company Amount Received (Rs. in crore) 1. Cotys Buildcon Pvt. Ltd. (DLF Group Company) 22.00 2. Malayeka Builders Developers Pvt. Ltd. (DLF Group Company) 22.00 3. Naja Builders Developers Pvt. Ltd (DLF Group Company). A copy of relevant pages of Annual Return of Naja Builders Developers for FY 2017-18 is annexed herewith as Annexure P58. The amount given in 2014-15 and is still outstanding. A copy of relevant of pages of Balance Sheet for FY 2014-15 of Naja Builders Developers Pvt. Ltd. Is annexed herewith as Annexure P59. 22.00 Total 66.00 Petitioner has alleged that companies owned by DLF Group Company have received huge loans from IBHFL. 14. During the course of hearing, learned counsel appearing on behalf of petitioner alleged that various irregularities have been comm .....

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..... r subsidiary companies through Myrina Real Estate, even though this company has no work history of the past and the transactions were sham and were made with the mala fide intent to fight levy of interest or to fight disclosure of name in the financial statement. Besides, the petitioner has also alleged that Myrina Real Estate is owned subsidiary of EMU Construction, which is owned by Sameer Gehlaut through Mugwort Real Estate Limited. To demonstrate the chain of group of companies owned by Indiabulls, the petitioner has shown it through the following flow chart:- Myrina Builders:- The company is a fully owned subsidiary of EMU Construction, which in turn is owned by Sameer Gehlaut through Mugwort Real EstateLimited. Attention of this Court was drawn to the chart Annexure P64. To show that investment of about Rs.614/- crores in India Best Buy flowing of money to and fro from Myrina Builders Pvt. Ltd. 17. Mugwort Real Estate- It is a company stated to be owned by Sameer Gehlaut and has no work history and resources of finance in the financial statement. The proceeds of mobilised advance have been used to acquire equity shares of Gloxina Infrastructure, EMU C .....

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..... so made to direct the Ministry of Corporate Affairs to conduct a fair investigation through the SFIO into the irregularities committed by Indiabulls and companies. A direction is also sought to Reserve Bank of India, National Housing Bank to investigate the financial affairs of IBHFL and direct a special audit. 23. To rebut the allegations of the petitioner, the Ministry of Corporate of Affairs its interim affidavit dated 22.10.2019 by it has been stated that an inspection under Section 206 (5) of the Companies Act, 2013 has already been directed in respect of three companies Indiabulls Ventures Limited, Indiabulls Housing Finance Limited and Indiabulls Real Estate Limited. In its second Affidavit filed on 28.11.2019, it is stated that inspection was in progress. Vide its third additional Affidavit filed on 05.09.2023, Ministry of Corporate of Affairs has stated that it had ordered inspection under Section 206(5) of the Companies Act, 2013 on 23.07.2018 in respect of three companies i.e., IBVL, IBHFL and IBREL and the report was awaited. However, as per Inspection reports dated 15.11.2019 and 19.11.2019, the loans given by IBHFL to five companies, i.e. DLF, Americorp, Vatika, AD .....

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..... , a letter dated 20.08.2019 was sent to National Housing Board stating that SEBI is neither a proper party nor a necessary party to the present proceedings. 26. Respondent-NHB in its Affidavit has stated that it has no regulatory power over any of the companies mentioned in the writ petition as power of NHB stands transferred to RBI w.e.f. 09.08.2019 and, therefore, this respondent has forwarded the complaint in the present petition for necessary action to SEBI, ROC, SFIO and RBI who have the regulatory power. However, it is stated that Ms. Indiabulls Housing Finance Ltd. (IHFL) was granted certificate of registration by NHB to carry on the business of housing finance institution and is amenable to the provisions of NHB Act and in exercise of its powers conferred under Section 33 of NHB Act, a special audit of IHFL was conducted. It is further stated that since NHB had the supervisory power to purview the functioning of Indiabulls Housing Finance Ltd. having granted certificate of registration by NHB, no other company mentioned in the present writ petition could be audited. In the counter-Affidavit, the NHB has further stated that the audit was conducted by M/s Ravi Ranj .....

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..... imited (secured against equity shares of IBREL Edelwis Financial Services), loan from JM Financials Product Limited (secured against equity shares of IBREL and Infosys Limited). Further, funds were raised from other AG companies, including Indialand Tech Park Private Limited and Americorp Capital Private Limited. With regard to investment by Joindre Finance in Indiabulls Group/SG Group companies, the Auditor has furnished the following report:- Details of Investment by Joindre Finance Private Limited (Rs. In Crore) Name of the Company Mode 31.03.2016 31.03.2017 31.03.2018 31.03.2019 Indiabulls Real Estate Limited Equity Shares 70.38 55.13 - - Iphito Real Estate Private Limited OCD 11.00 44.00 44.00 - Indiabulls Housing Finance Limited Equity Shares 3.26 .....

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..... hat Reliance Interactive Advisors Private Limited did not have loan outstanding during the period under review. The Auditor has remarked that the analysis of SG Group Companies is limited to the extent that the same has been based on the year-end outstanding appearing in the AFS of these companies. Hence, they were unable to comment on the dates/timelines of flow of funds/transactions between these companies in the absence of respective ledgers and bank statements during the year. 30. C. Chordia Group:- With regard to the allegations of petitioner that IHFL had given loans to three Chordia Group Companies and two companies out of these companies, namely, Built to Live Realty LLP and Mahalunge Land Developers LLP had diverted the funds. The Auditor s report observed that apart from these three companies, ten more companies belonging to Chordia Group Companies were provided loans by IHFL and out of these 23 sanctioned loans, loan of twelve accounts was NIL . 31. AC Realty Spaces LLP: - As per AFS, Loan from NBFC stood at Rs. 184.07 crores and Rs. 133.40 crores as on 31.03.2019 and 31.03.2018, respectively. As per loan book of IHFL, balance loan outstanding as on 31.03. .....

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..... fty two DLF Group of Companies as on 31.12.2019 and there was outstanding balance of 0.03 crores in case of DLF Home Developers Ltd. and rest of the loans granted to the other companies were fully repaid. 37. The Auditor has thereby observed as under:- Auditor s Observation: The Auditor has observed certain instances of non-compliances/violations by IHFL of the provisions of NHB Act and the Guidelines, Directions, Policy Circulars etc. issued by NHB. A copy of the Special Auditor s report dated 07.04.2020. A show cause dated 09.07.2020 for the contraventions observed in special audit has been issued and IHFL has submitted its reply to the said show cause and the same is under process. In addition to the above, NHB has issued show cause with respect to the contraventions/non- compliances observed during the regulatory inspection as on 31.03.2019 and after examining the reply submitted by IHFL, NHB has already imposed penalties to the tune of Rs. 3,45,000/- for various non-compliances. 5. Further, with regard to the transactions between above mentioned SG Group and the alleged companies and vice versa; NHB is sharing the audit report with MCA, RBI SEBI, for .....

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..... ns, which have been ploughed back to Indiabulls group companies through Equity investment, and it was found that IBHFL had actually lent Rs.39 crore to Americorp Capital Pvt. Ltd. on 30.03.2016 as per usage defined in AOA/MOA and/or General Corporate Purpose at variable interest rate, which was calculated at 14% per annum (at the time of sanction), and on the same day, the amount was further lent by Americorp Capital Pvt. Ltd. to other Americorp group companies. The loan availed by Americorp Capital from IBHFL was repaid on 01.09.2016. 40. The RBI has further averred that five Reliance ADA Group companies, which were not NBFCs, had obtained loans worth Rs.1568 Crore from IBHFL, which was later repaid, details whereof are as under:- S.No. Reliance ADA Group Borrower Entity Amount Agreement Date Repayment Date 1. Reliance Inceptum Private Limited 106 26.11.2016 16.01.2019 2. Zapak Digital Entertainment Limited 156 2 .....

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..... nies received Rs. 1209.50 crores from IBHFL in loans. This loan was squared up through money diverted from Mahalunge Land Developers (group Company of Chordia) from the amount borrowed from IBHFL. In addition Rs.50 crores was paid as professional fee to Indiabulls Real Estate Limited. iv. IBHFL loaned about Rs. 4600 crore to 51 companies of Vatika Group, many of which were pass-through companies, with a paid-up capital of barely Rs. 1 lakh. Agnes Developers, one of the Vatika Group companies, ploughed back Rs. 400 crores in Karkinos Constructions and India Best Buy in 2014-15 in the form of debentures. V. Similarly, IBHFL has put in more than Rs. 1705 crore in 48 companies of DLF Group, many of which have negative worth. 44. For alleging the afore-noted siphoning of funds by the IBHFL and other Indiabull group of companies, the petitioner has relied upon news report dated 14.06.2019 published in Business Standard and news report published in December, 2018 in Economic Times, to submit that in July, 2016, the Income Tax Department had carried out massive raids in the premises of Indiabulls and its companies located in Mumbai and Delhi and directed Indiabulls to pay Rs .....

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..... s and the remaining issues/violations reported in the Inspection Report were under examination. The final inspection reports in respect of Indiabulls were submitted to the Central Government on 15.11.2019 and 03.02.2022 and in respect of Indiabulls Real Estate limited, reports were submitted to the Central Government on 28.01.2020 and 03.03.2022. These reports were also shared with SEBI, NHB and State Government of Haryana. 48. The respondent-SEBI has in crystal clear words taken the stand that the loans advanced by the Indiabulls or its subsidiaries or group of companies fall under the purview of National Housing Board and Reserve Bank of India. In turn, the respondent National Housing Board (NHB) in its Affidavit has stated that even though its powers stand transferred to RBI w.e.f. 09.08.2019, however, since it had granted certificate of registration to the Indiabulls to carry on the business of housing finance institution, in its powers under Section 33 of the NHB Act, a special audit of IHFL only was conducted by M/s Ravi Ranjan Co. LLP, (Chartered Accountants), and not other companies mentioned in the writ petition. 49. The Auditor of NHB has in its report stated .....

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..... ated 28.07.2019 written by Dr. Subramanian Swamy to the Prime Minister in respect of alleged embezzlement of amounts by Indiabulls and his tweets in this regard. The respondent-Indiabulls is stated to have preferred CS(OS)475/2019, against Dr. Subramanian Swamy, which was dismissed as withdrawn on 11.10.2019, however, this Court vide order dated 13.09.2019 had passed interim directions to remove/ take down the offending false messages from their portals. 55. What is relevant to note here is that petitioner has also relied upon a hype created in news reports on filing of a writ petition filed by Abhay Yadav (W.P.(Crl.) 20710/2019) in the Hon ble Supreme Court, however, according to respondent-Indiabulls the said present petition was withdrawn by him on 13.06.2019 i.e. within two days of filing it and the present petition is a copy-paste version the said petition. Infact, Abhay Yadav, in his letter dated 13.06.2019 written to the Hon ble Prime Minister and other Ministers, had stated that he had no knowledge of the contents of the complaint and does not know anything about Indiabulls or its promoters, directors, officers etc. and has not drafted any such complaint. He was as .....

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..... and in extraordinary circumstances. Unless the authority statutorily entrusted with the power to investigate portrays a glaring, willful and deliberate inaction in carrying out the investigation the court will ordinarily not supplant the authority which has been vested with the power to investigate. Such powers must not be exercised by the court in the absence of cogent justification indicative of a likely failure of justice in the absence of the exercise of the power to transfer. The petitioner must place on record strong evidence indicating that the investigating agency has portrayed inadequacy in the investigation or prima facie appears to be biased. 35. Recently, in Himanshu Kumar v. State of Chhattisgarh , this Court, speaking through one of us (JB Pardiwala, J) relying on a judgment of a three judge Bench of this Court in K.V. Rajendran v. Superintendent of Police CBCID South Zone, Chennai reiterated the principle that the power to transfer an investigation to investigating agencies such as the CBI must be invoked only in rare and exceptional cases. Further, no person can insist that the offence be investigated by a specific agency since the plea can only be that .....

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..... ordinary citizens with the opportunity to highlight legitimate causes before this Court. It has served as a tool to secure justice and ensure accountability on many occasions, where ordinary citizens have approached the Court with well-researched petitions that highlight a clear cause of action. However, petitions that lack adequate research and rely on unverified and unrelated material tend to, in fact, be counterproductive. This word of caution must be kept in mind by lawyers and members of civil society alike. 61. Applying the dictum of the Hon ble Supreme Court to the case in hand, this Court is of the opinion that the allegations levelled by the petitioner are not substantiated as these are not supported by any evidence. The balance sheets or other material placed on record is already available on the website of these companies and is thus already in public domain. Not only a large portion of alleged loans were repaid by the respondent- companies but also the loans were advanced against mortgages and securities furnished by the borrowers. Moreover, due to alleged complaints, the Government functionaries have already set in motion and necessary inspections have been carrie .....

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