Andhra HC (Pre-Telangana)
S. Ravi Kiran vs Secretary, Ministry Of Company Affairs ... on 29 October, 2007
Equivalent citations: 2008(1)ALD730, [2008]141COMPCAS66(AP), (2008)2COMPLJ153(AP), [2008]82SCL421(AP)
JUDGMENT P.S. Narayana, J.
1. Heard Sri Venkatesh Gupta, representing Sri K. Ramakrishna, counsel for the petitioner, and Sri Vijaya Bhaskar Moola, representing respondents Nos. 1 and 2.
Sri Venkatesh Gupta, representing Sri K. Ramakrishna, would contend that in the light of Sections 235, 236 and 237 of the Companies Act, 1956, appropriate directions can be issued even by a writ court under Article 226 of the Constitution of India. Counsel had also taken this Court through the respective stands taken by the petitioner in the affidavit filed in support of the writ petition and also the second respondent in the counter-affidavit filed in response to the affidavit filed by the petitioner.
2. On the contrary, Sri Vijaya Bhaskar Moola had taken this Court through the specific stand taken in the counter-affidavit by the Registrar of Companies in charge, the second respondent, and would contend that the remedy, if any, available to the petitioner is to invoke the Company Law Board, in accordance with the provisions of the Companies Act, 1956, and hence the writ petition itself is not maintainable. Incidentally, learned Counsel also touched the merits and demerits of the matter.
Heard learned Counsel on either side.
3. The writ petition is filed seeking to issue a writ, order or direction more particularly one in the nature of writ of mandamus directing the first respondent to appoint a competent person as investigator for investigating into the affairs of the third respondent-company from 1995 onwards and to file a report before this Court and to pass suitable orders.
4. It is averred that the petitioner and his relatives invested collectively Rs. 5,00,000 approximately in the stock market in the year, 1995. The petitioner is an educated unemployed at the relevant point of time and agreed to become the fund manager. It is further stated that in the year, 1995, a stockbroker of Vijayawada (A.P.) approached the petitioner and explained the prospectus of the third respondent-company. The petitioner bona fide believed the statements of the said broker and purchased 15,000 shares of the third respondent-company having registered folio numbers TAL-0000499, etc., at the face value of Rs. 10 each share. The petitioner had invested Rs. 1,50,000 in the year, 1995. For the last few years the petitioner has not received any annual report nor notice of any extraordinary annual general body meeting of the company. The said facts were brought to the notice of the second respondent, i.e., the Registrar of Companies, Hyderabad, by the petitioner vide a letter dated June 18, 2004, and October 25, 2006. It is further stated that the second respondent had referred the said complaint to the third respondent-company and washed off his hands without any action for the deliberate omissions/commissions of the third respondent-company under the Companies Act, 1956.
5. It is further stated that through reliable sources the petitioner came to know that the third respondent-company had become allegedly sick and proposed a scheme before the Board for Industrial and Financial Reconstruction (BIFR), New Delhi, for revival of the company. It is further stated that the petitioner and his relatives had invested their hard earned money of Rs. 1,50,000 in the year, 1995. Till today they could not get even a single rupee as return, on top of it, the value of the share in the market is zero. It is further stated that on May 1, 2007, the petitioner through his counsel sent a notice to the first respondent with the above said facts and sought investigation by a competent person to investigate into the affairs of the company from 1995 onwards. Further, specific stand had been taken that the first respondent ought to have noticed that the promoters/directors of the third respondent-company had formed the said company prima facie only for fraud and to siphon off public funds worth crores of rupees. Since the petitioner and his relatives had invested hard earned money, they are interested in the affairs of the said company and they are entitled to maintain the present writ petition.
6. In the counter-affidavit filed by the second respondent, it is stated that M/s. Trezer Oil Agro Tech Ltd., was originally incorporated as private limited company in the State of Andhra Pradesh vide Certificate of Incorporation No. 01-19063/94-95 on December 26, 1994. Thereafter, the company was converted into a public limited company with effect from January 25, 1995. The company was incorporated to pursue its main objects such as manufacture, sell, export and deal in castor oil and soap products, etc. The annual return made up to September 30, 2005, filed with respondent No. 2 discloses that the company's registered office is situated at 17-3, Basapuram Road, Adoni, Kurnool, Andhra Pradesh-516 301, and the directors of the company as on that date are Sri A. Santosh, director, residing at 17-3, Basapuram Road, Adoni, Kurnool, Sri A. Eranna residing at the same address, and Sri S. Abdulla, residing at 1-541/26, NGO Colony, Emmigannoor Road, Adoni, Kurnool district.
7. Further, it is stated that as regards the averments made by the petitioner that he has not received any annual return or notice of any extraordinary general body meeting of the company and the said facts were brought to the notice of the second respondent, i.e., the Registrar of Companies on June 18, 2004, and October 25, 2006 and respondent No. 2 washed off his hands without any action after referring the complaints to respondent No. 3 company, under the provisions of the Companies Act, 1956, it is stated that respondent No. 2 is having 54,000 shares under his jurisdiction and discharging various functions under the Companies Act, 1956, with a meager staff strength of 17 excluding 5 officers and 5 group "D" staff members. Most of the time of respondent No. 2 has to be spent over the complaints received from various shareholders of the listed companies. In pursuance of the complaints, respondent No. 2 has initiated prosecutions against the delinquent directors and the defaulting companies before the Special Judge for Economic Offences at Hyderabad, and respondent No. 2 has even lodged FIRs and filed complaints against several vanishing companies which have collected huge monies from the public by issuing prospectus and thereafter disappeared. Apart from that respondent No. 2 has filed number of complaints against the companies which have defaulted in refunding the deposit money to the deposit holders even though, the amounts got matured. Moreover, respondent No. 2 has to discharge his other statutory functions such as registration of company's documents regularly and send replies to the complaints made under the Right to Information Act and supply certified copies to various investigating authorities and courts. Further, the petitioner being a shareholder is at liberty to file complaint before the court of Special Judge for Economic Offences under Section 621 of the Companies Act, 1956, which was given at par with the Central Government to file prosecutions against the companies. Therefore, the petitioner ought to have approached the court of Special Judge for Economic Offences by way of a complaint against M/s. Trezer Oil Agro Tech Ltd., and its directors for the alleged defaults under the Companies Act, 1956. However, the petitioner has not availed of such remedy available under the Companies Act, 1956.
8. It is also stated that the petitioner sent a notice on May 1, 2007, to respondent No. 1 seeking appointment of inspector to investigate into the affairs of the company from 1995 onwards, respondent No. 1 does not have any suo motu power to order for the investigation against respondent No. 3 company. Moreover, the petitioner has not furnished any material evidence/information showing that the company has either defrauded the investors or acted detrimentally to the interest of the investments made by the shareholders or acted in oppression of the shareholders. Moreover, there is no allegation/averment made in the petition that the directors of the company have mismanaged the affairs of the company. In the absence of such material evidence, respondent No. 2 is not in a position to suggest for investigation against respondent No. 3 company to respondent No. 1.
9. Further, it is averred that under Sections 235 to 237 of the Companies Act, 1956, the petitioner has a remedy to approach the Company Law Board which is a statutory body having specialisation to conduct the matters assigned out of the provision of the Companies Act, 1956. The petitioner has not approached the Company Law Board at all. Even though, in case the petitioner intended to approach the court, he should have approached the company court instead of filing this writ petition. In this regard, it is stated that the High Court of Kerala in the matter of R.V. Mohammed v. Trichur Heart Hospital Ltd. [2000] 38 CLA 500 : [2001] 104 Comp Cas 243, upheld that "of course, the company court has got power to exercise in terms of Section 237(1)(ii)". But Section 237(b) empowers the Company Law Board, if there are circumstances necessitating investigation, to order accordingly. This power has been granted to the Company Law Board in terms of the amendment effected in the Act in 1988. Before the amendment, sanction had to be given in terms of Clause (b) by the Central Government. When the power vested in the executive Government is invoked, one incumbent may perhaps feel that justice may not be meted out. But now, after the amendment in 1988 the power vested with the Central Government had been taken away and vested with the Company Law Board. When the power is conferred on the Company Law Board, it is incumbent on the petitioner to approach that statutory Board which shall examine and do justice, as the circumstances demand. In such circumstances, there arise no reason for exercising the discretionary power vested in this company court to direct such investigation or declare that it needs investigation by the Central Government.
10. Section 235 of the Companies Act, 1956, deals with investigation of affairs of a company, which reads as hereunder:
235. Investigation of the affairs of a company.--(1) The Central Government may, where a report has been made by the Registrar under Sub-section (6) of Section 234, or under Sub-section (7) of that section, read with Sub-section (6) thereof, appoint one or more competent persons as inspectors to investigate the affairs of a company and to report thereon in such manner as the Central Government may direct.
(2) Where-
(a) in the case of a company having a share capital, an application has been received from not less than two hundred members or from members holding not less than one-tenth of the total voting power therein, and
(b) in the case of a company having no share capital, an application has been received from not less than one-fifth of the persons on the company's register of members, the Tribunal may, after giving the parties an opportunity of being heard, by order, declare that the affairs of the company ought to be investigated by an inspector or inspectors, and on such a declaration being made, the Central Government shall appoint one or more competent persons as inspectors to investigate the affairs of the company and to report thereon in such manner as the Central Government may direct.
11. Likewise, Section 237 of the Companies Act, 1956, deals with investigation of company's affairs in other cases, which reads as under:
237. Investigation of company's affairs in other cases.--Without prejudice to its powers under Section 235, the Central Government-
(a) shall appoint one or more competent persons as inspectors to investigate the affairs of a company and to report thereon in such manner as the Central Government may direct, if-
(i) the company, by special resolution ; or
(ii) the court, by order, declares that the affairs of the company ought to be investigated by an inspector appointed by the Central Government; and
(b) may do so if, in its opinion or in the opinion of the Tribunal, there are circumstances suggesting-
(i) that the business of the company is being conducted with intent to defraud its creditors, members or any other persons, or otherwise for a fraudulent or unlawful purpose, or in a manner oppressive of any of its members, or that the company was formed for any fraudulent or unlawful purpose ;
(ii) that persons concerned in the formation of the company or the management of its affairs have in connection therewith been guilty of fraud, misfeasance or other misconduct towards the company or towards any of its members ; or
(iii) that the members of the company have not been given all the information with respect to its affairs which they might reasonably expect, including information relating to the calculation of the commission payable to a managing or other director or the manager, of the company.
12. The power conferred on the Central Government under Section 237(b) of the Companies Act, 1956 (hereinafter referred to as "the Act" for the purpose of convenience) is a discretionary power whereas under Section 237(a) of the Act, the Central Government is bound to appoint one or more competent persons as inspectors to investigate into the affairs of a company, as held in Rohtas Industries Ltd. v. S.D. Agarwal .
13. As can be seen from the different provisions of the Act, and also the scheme of the Act, since the petitioner is having a remedy to approach the Company Law Board or to invoke such other remedies available to him under law or under the provisions of the Companies Act, the petitioner is given liberty to pursue the other legal remedies available to him, in accordance with law.
Accordingly, the writ petition is disposed of. No costs.