Delhi High Court
Shriraj Investment And Finance Limited ... vs Union Of India Through Secretary & Anr. on 14 September, 2021
Author: Yogesh Khanna
Bench: Yogesh Khanna
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 02nd September, 2021
Decided on : 14th September, 2021
+ W.P.(CRL) 1823/2020, CRL.M.A. 15208/2020, CRL.M.A.
11302/2021, CRL.M.A. 11304/2021
SHRIRAJ INVESTMENT AND FINANCE
LIMITED & ORS. ..... Petitioners
Through : Mr.Kapil Sibal, Senior Advocate
with Ms.Ranjana Roy Gawai,
Ms.Vasudha Sen, Ms.Prachi
Golechha and Mr.Arshdeep S.
Khurana, Mr.Ujjwal Jain, Advocates.
versus
UNION OF INDIA THR. SECRETARY & ANR. ..... Respondents
Through : Mr.Chetan Sharma, ASG with
Ms.Shiva Lakshmi, CGSC,
Mr.Kirtiman Singh, Mr.Waize Ali
Noor, Ms.Taha Tasin, Advocates for
UOI.
Ms.Sonam Sharma (Sr.Asst.
Director), with Ms.Shivani Sharma,
Mr.Vishal Srivastava for SFIO.
Mr.Shikher Upadhyay and
Ms.Ayushi Singh, Advocates for
impleader/Torsion Digital Network.
+ W.P.(CRL) 1414/2021 & CRL.M.A. 11968/2021
CASPER CONSUMER ELECTRONICS PVT LTD..... Petitioner
Through : Mr.Sandeep Sethi, Senior Advocate
with Ms.Ranjana Roy Gawai,
Ms.Vasudha Sen, Mr.Arshdeep
Singh, Ms.Prachi Golechha,
Advocates.
versus
UNION OF INDIA & ANR. ..... Respondents
W.P.(Crl) No.1823/2020 & W.P.(CRL) 1414/2021 Page 1 of 14
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA
Signing Date:14.09.2021 14:41
Through : Mr.Chetan Sharma, ASG with
Mr.Anurag Ahluwalia, CGSC for
UOI with Mr.Syed Hussain Adil
Taqvi and Mr.Abhigyan, Advocates.
CORAM:
HON'BLE MR. JUSTICE YOGESH KHANNA
YOGESH KHANNA, J. (Through Video Conferencing)
1. Both these petitions are taken up together as similar issues are being
raised.
2. W.P.(CRL.)1823/2020 is filed for impugning the letter dated
29.06.2019 and the corrigendum issued on 29.11.2019 by the respondent
no.1 directing the respondent no.2 to file complaint against the petitioners
for the offences under the Companies Act, 2013 mentioned therein and
secondly issuing directions to respondent no.2 to initiate the proceedings
under Section 241/242/246 read with Section 339 of the Companies Act,
before the NCLT.
3. It is submitted the letter dated 29.06.2019 calls for freezing and
disgorgement of assets of 157 companies to be sold despite the fact such
companies are functional. Following grounds have been taken to challenge
the impugned order a) per Section 212(14) of the Companies Act if the final
report is filed before the Central Government, it needs to be examined by it
and after taking legal advice it may initiate the prosecution. Section 212(14)
of the Companies Act runs as under:
"212. Investigation into affairs of Company by Serious Fraud
Investigation Office
(1) to (13) xxxxx.
(14) On receipt of the investigation report, the Central
Government may, after examination of the report (and after
taking such legal advice, as it may think fit), direct the Serious
Fraud Investigation Office to initiate prosecution against the
W.P.(Crl) No.1823/2020 & W.P.(CRL) 1414/2021 Page 2 of 14
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA
Signing Date:14.09.2021 14:41
company and its officers or employees, who are or have been in
employment of the company or any other person directly or
indirectly connected with the affairs of the company.
(15) to (17) xxxxxx"
It is submitted the officers of the Central Government were to
examine and apply their mind on the report. It is alleged the final report
dated 27.06.2019 was filed before the Central Government and it was
humanly impossible to examine such report, consisting of lakhs of pages
within two days and then pass the impugned order;
b) Section 212(14A) of the Companies Act came into effect w.e.f.
15.08.2019 wherein for the first time power of disgorgement of properties
came into effect but whereas in the present case on dated 29.06.2019 the
order for disgorgement was issued, hence it is a premature letter without
any power Section 212(14A) is as under:
"(14A) Where the report under sub-section (11) or sub-
section (12) states that fraud has taken place in a company
and due to such fraud any director, key managerial
personnel, other officer of the company or any other
person or entity, has taken undue advantage or benefit,
whether in the form of any asset, property or cash or in
any other manner, the Central Government may file an
application before the Tribunal for appropriate orders
with regard to disgorgement of such asset, property or
cash and also for holding such director, key managerial
personnel, other officer or any other person liable
personally without any limitation of liability."
c) Section 241, 242 of Companies Act deals with mismanagement of affairs
of the company and it does not provide any power of attachment of property
of the company or disgorgement; d) the issue of jurisdiction cannot be
decided by NCLT as it has no power to review the administrative order(s),
hence the only remedy is filing of a Writ Petition and e) Section 241, 242 of
Companies Act since deal with affairs of the company there cannot be an
W.P.(Crl) No.1823/2020 & W.P.(CRL) 1414/2021 Page 3 of 14
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA
Signing Date:14.09.2021 14:41
onerous order of attachment and/or disgorgement of 157 companies. It was
rather stated if the SFIO feels there is a problem with 2-3 companies they
can deal with those companies separately and seek remedy under Section
241, 242 of Companies Act and lastly it was argued such power of
disgorgement, even otherwise, can be ordered only after trial and not at
filing of chargesheet. It is argued unless the State proves its case of
disgorgement, no order can be passed by NCLT for such an action.
4. The learned senior counsel for the petitioner, to prove such penal
provisions only have a retrospective effect, referred to Commissioner of
Income Tax (Central)-I, New Delhi vs. Vatika Township Private Limited
(2015) 1 SCC (1), a Constitutional Bench judgment, wherein the Court held
as under:
"31. In such cases, retrospectively is attached to benefit
the persons in contradistinction to the provision imposing
some burden or liability where the presumption attaches
towards prospectivity. In the instant case, the proviso
added to Section 113 of the Act is not beneficial to the
assessee. On the contrary, it is a provision which is
onerous to the assessee. Therefore, in a case like this, we
have to proceed with the normal rule of presumption
against retrospective operation. Thus, the rule against
retrospective operation is a fundamental rule of law that
no statute shall be construed to have a retrospective
operation unless such a construction appears very clearly
in the terms of the Act, or arises by necessary and distinct
implication. Dogmatically framed, the rule is no more
than a presumption, and thus could be displaced by out
weighing factors.
34. It would also be pertinent to mention that assessment
creates a vested right and an assessee cannot be subjected
to reassessment unless a provision to that effect inserted
by amendment is either expressly or by necessary
implication retrospective. (See Controller of Estate Duty
Gujarat-I v. M.A. Merchant[9]."
W.P.(Crl) No.1823/2020 & W.P.(CRL) 1414/2021 Page 4 of 14
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA
Signing Date:14.09.2021 14:41
5. Further in Hitendra Vishnu Thakur & Ors. Vs. State of Maharashtra
& Ors. (1994) 4 SCC 602 the Court held as under:
"26. The Designated Court has held that the amendment
would operate retrospectively and would apply to the
pending cases in which investigation was not complete on
the date on which the Amendment Act came into force and
the challan had not till then been filed in the court. From
the law settled by this Court in various cases the
illustrative though not exhaustive principles which emerge
with regard to the ambit and scope of an Amending Act
and its retrospective operation may be culled out as
follows:
(i) A statute which affects substantive rights is presumed
to be prospective in operation unless made retrospective,
either expressly or by necessary intendment, whereas a
statute which merely affects procedure, unless such a
construction is textually impossible, is presumed to be
retrospective in its application, should not be given an
extended meaning and should be strictly confined to its
clearly defined limits.
(ii) Law relating to forum and limitation is procedural in
nature, whereas law relating to right of action and right of
appeal even though remedial is substantive in nature.
(iii) Every litigant has a vested right in substantive law but
no such right exists in procedural law.
(iv) A procedural statute should not generally speaking be
applied retrospectively where the result would be to create
new disabilities or obligations or to impose new duties in
respect of transactions already accomplished.
(v) A statute which not only changes the procedure but
also creates new rights and liabilities shall be construed
to be prospective in operation, unless otherwise provided,
either expressly or by necessary implication."
6. Heard.
7. Before proceeding let me first examine the issue of jurisdiction. It is a
settled law the challenge to the jurisdiction of NCLT ought to have been
raised before NCLT itself. Once the proceedings have been initiated before
NCLT and if the NCLT is seized with the company petition, all contentions
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Signing Date:14.09.2021 14:41
including power of the respondent to initiate such proceedings before
NCLT must be raised before such forum and be determined in those
proceedings. The petitioner herein in fact is seeking quashing of impugned
order/letter dated 29.06.2019 which is in effect challenging the jurisdiction
of NCLT. Since the petition has already been filed under Section 241, 242
of the Companies Act; notice having been issued; the contention raised
before this Court on the point of jurisdiction of NCLT can very well be
raised before the NCLT. Companies Act is a complete code hence statutory
mechanism under it cannot be bypassed. Section 430 of the Act provides
the jurisdiction of all Civil Courts is barred in respect of the matter which
the NCLT or the NCLAT is empowered to determine by or under Act.
8. Section 430 of Companies Act is as under:
"430. No civil court shall have jurisdiction to entertain
any suit or proceeding in respect of any matter which the
Tribunal or the Appellate Tribunal is empowered to
determine by or under this Act or any other law for the
time being in force and no injunction shall be granted by
any court or other authority in respect of any action taken
or to be taken in pursuance of any power conferred by or
under this Act or any other law for the time being in force,
by the Tribunal or the Appellate Tribunal."
9. Thus though the provisions of the Act do not take away the
jurisdiction of this Court under Article 226 but it is a trite law in case where
the statute provides for an exhaustive mechanism to deal with all matters
pertaining to statute and manifest an intention to bar the jurisdiction of all
other Courts, such Writs should not be entertained unless there are extreme
and/or extraordinary circumstances.
10. Thus there is readily available alternate remedy viz. to raise objection
to maintainability of company petition before the NCLT itself and if
W.P.(Crl) No.1823/2020 & W.P.(CRL) 1414/2021 Page 6 of 14
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Signing Date:14.09.2021 14:41
aggrieved by the decision of the NCLT the petitioner is free to avail
appellate remedy before the NCLAT under section 421 and further appeal
to the Supreme Court under section 423 of the Act. The grievance pertains
to the institution of company petition can very well be addressed by the
authorities created under the Act and finally by the Hon'ble Supreme Court.
11. In Raj Kumar Shivhare v. Directorate of Enforcement (2010) 4 SCC
772 the Hon'ble Supreme Court had held when the statutory forum is
created by law for redressal of grievance and that too in a fiscal statute, a
writ petition should not be entertained ignoring the statutory dispensation.
statutory remedy should not be abdicated and given a go-by by a litigant for
invoking the forum of judicial review of the High Court under writ
jurisdiction.
12. In State Bank of Travancore vs. Mathew K.C. (2018) 3 SCC 85 the
Court held as under:
"5. We have considered the submissions on behalf of the
parties. Normally this Court in exercise of jurisdiction
Under Article 136 of the Constitution is loathe to interfere
with an interim order passed in a pending proceeding
before the High Court, except in special circumstances, to
prevent manifest injustice or abuse of the process of the
court. In the present case, the facts are not in dispute. The
discretionary jurisdiction Under Article 226 is not
absolute but has to be exercised judiciously in the given
facts of a case and in accordance with law. The normal
Rule is that a writ petition Under Article 226 of the
Constitution ought not to be entertained if alternate
statutory remedies are available, except in cases falling
within the well defined exceptions as observed in
Commissioner of Income Tax and Ors. v. Chhabil Dass
Agarwal, MANU/SC/0802/2013 : 2014 (1) SCC 603, as
follows:
15. Thus, while it can be said that this Court has
recognised some exceptions to the Rule of alternative
remedy i.e. where the statutory authority has not acted
W.P.(Crl) No.1823/2020 & W.P.(CRL) 1414/2021 Page 7 of 14
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Digitally Signed
By:PRADEEP SHARMA
Signing Date:14.09.2021 14:41
in accordance with the provisions of the enactment in
question, or in defiance of the fundamental principles of
judicial procedure, or has resorted to invoke the
provisions which are repealed, or when an order has
been passed in total violation of the principles of natural
justice, the proposition laid down in Thansingh Nathmal
case, Titaghur Paper Mills case and other similar
judgments that the High Court will not entertain a
petition Under Article 226 of the Constitution if an
effective alternative remedy is available to the aggrieved
person or the statute under which the action complained
of has been taken itself contains a mechanism for
redressal of grievance still holds the field. Therefore,
when a statutory forum is created by law for redressal of
grievances, a writ petition should not be entertained
ignoring the statutory dispensation."
13. Further in Arcelormittal India (P) Ltd. vs. Satish Kumar Gupta
(2019) 2 SCC 1 the Court held:
84. xxxxx The non-obstante Clause in Section 60(5) is
designed for a different purpose: to ensure that the NCLT
alone has jurisdiction when it comes to applications and
proceedings by or against a corporate debtor covered by
the Code, making it clear that no other forum has
jurisdiction to entertain or dispose of such applications or
proceedings.
14. This Court does not have territorial jurisdiction to entertain this Writ
Petition as the company petition is filed before the NCLT at Allahabad and
in respect of the companies having its registered office in the State of Uttar
Pradesh that is beyond the jurisdiction of this Court. It was submitted by the
learned ASG, presently, the action is being taken only against seven
companies viz. the petitioners herein whose all registered offices are
situated in Uttar Pradesh and the action is not contemplated as of now
against 157 companies.
15. I may here add a mere issuance of impugned letter does not provide a
cause of action to the petitioner at Delhi as it arises only after filing of the
W.P.(Crl) No.1823/2020 & W.P.(CRL) 1414/2021 Page 8 of 14
Signature Not Verified
Digitally Signed
By:PRADEEP SHARMA
Signing Date:14.09.2021 14:41
company petition before the NCLT which had taken place outside the
territorial jurisdiction of this Court. The mere fact the respondent no.1 and
SFIO/respondent no.2 have their headquarters within the jurisdiction of this
Court would not be enough to confer jurisdiction. In Kusum Ingots & Alloys
Ltd. vs. Union of India, (2004) 6 SCC 254 the Court held:
"21. A parliamentary legislation when receives the assent
of the President of India and published in an Official
Gazette, unless specifically excluded, will apply to the
entire territory of India. If passing of a legislation gives
rise to a cause of action, a writ petition questioning the
constitutionality thereof can be filed in any High Court of
the country. It is not so done because a cause of action
will arise only when the provisions of the Act or some of
them which were implemented shall give rise to civil or
evil consequences to the petitioner. A writ court, it is well
settled would not determine a constitutional question in
vacuum.
22. The court must have the requisite territorial
jurisdiction. An order passed on writ petition questioning
the constitutionality of a Parliamentary Act whether
interim or final keeping in view the provisions contained
in Clause (2) of Article 226 of the Constitution of India,
will have effect throughout the territory of India subject of
course to the applicability of the Act.
Situs of office of the Respondents - whether relevant?
23. A writ petition, however, questioning the
constitutionality of a Parliamentary Act shall not be
maintainable in the High Court of Delhi only because the
seat of the Union of India is in Delhi. (See Abdul Kafi
Khan v. Union of India and Ors., MANU/WB/0086/1979 :
AIR1979Cal354 ).
24. Learned counsel for the appellant in support of his
argument would contend that situs of framing law or rule
would give jurisdiction to Delhi High Court and in
support of the said contention relied upon the decisions of
this Court in Nasiruddin v. State Transport Appellate
Tribunal MANU/SC/0026/1975 : [1976]1SCR505 and
U.P. Rashtriya Chini Mill Adhikari Parishad, Lucknow v.
State of U.P. and Ors. MANU/SC/0422/1995 :
AIR1995SC2148 . So far as the decision of this Court in
Nasiruddin v. State Transport Appellate Tribunal (supra)
is concerned it is not an authority for the proposition that
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Digitally Signed
By:PRADEEP SHARMA
Signing Date:14.09.2021 14:41
the situs of legislature of a State or the authority in power
to make subordinate legislation or issue a notification
would confer power or jurisdiction on the High Court or a
bench of the High Court to entertain petition under Article
226 of the Constitution. In fact this Court while construing
the provisions of United Provinces High Courts
(Amalgamation) Order, 1948 stated the law thus:
"The conclusion as well as the reasoning of the High
Court is incorrect. It is unsound because the expression
"cause of action" in an application under Article 226
would be as the expression is understood and if the cause
of action arose because of the appellate order or the
revisional order which came to be passed at Lucknow then
Lucknow would have jurisdiction though the original
order was passed at a place outside the areas in Oudh. It
may be that the original order was in favour of the person
applying for a writ. In such case an adverse appellate
order might be the cause of action. The expression "cause
of action" is well-known. If the cause of action arises
wholly or in part at a place within the specified Oudh
areas, the Lucknow Bench will have jurisdiction. If the
cause of action arisen wholly within the specified Oudh
areas, it is indisputable that the Lucknow Bench would
have exclusive jurisdiction in such a matter. If the cause of
action arises in part within the specified areas in Oudh it
would be open to the litigant who is the dominus litis to
have his forum conveniens. The litigant has the right to go
to a Court ' where part of his cause of action arises. In
such cases, it is incorrect to say that the litigant chooses
any particular Court. The choice is by reason of the
jurisdiction of the Court being attracted by part of cause
of action arising within the jurisdiction of the Court.
Similarly, if the cause of action can be said to have arisen
partly within specified areas in arisen in Oudh and partly
outside the specified Oudh areas, the litigant will have the
choice to institute proceedings either at Allahabad or
Lucknow. The Court will find out in each case whether the
jurisdiction of the Court is rightly attracted by the alleged
cause of action".
16. This Court does not exercise supervisory jurisdiction under Article
227 over NCLT at Allahabad and such jurisdiction vests solely with High
Court of Judicature at Allahabad.
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Digitally Signed
By:PRADEEP SHARMA
Signing Date:14.09.2021 14:41
17. The Hon'ble Supreme Court in various judgments have held Section
430 of the Companies Act has to be construed strictly and the NCLT has
been given inherent powers to decide the matters of the companies and
should not be interfered with lightly. In SAS Hospitality Pvt. Ltd. vs. Surya
Constructions Pvt. Ltd. 2018 SCC Online Delhi 11909 the Court held:
".... 10. Before going into the question as to whether this
Court has the jurisdiction to entertain and try the present
suit and grant reliefs prayed for, it is necessary to analyze
the scheme of the Companies Act, 2013, along with the
constitution of the NCLT. The NCLT has been vested with
powers that are far reaching in respect of management
and administration of companies. The said powers of the
NCLT include powers as broad as · '(regulation of conduct
of affairs of the company) under Section 242(2)(a), as also
various other specific powers. NCLT is a tribunal which
has been constituted to have exclusive jurisdiction in the
conduct of affairs of a company and its powers can be
contrasted with that of the CLB under the unamended
Companies Act, 1956
26. The bar under Section 430 of the 2013 Act has,
therefore, to be strictly construed and there can be no
doubt about that. The Division Bench also considered
Dhulabai v. State of· M.P. AIR 1969 SC 78 (hereinafter,
'Dhulabai'), and held as under:
..... 34. Yet another reason for holding that this Court
would have no jurisdiction is fact that the matter is also
pending before the CLB (now transferred to the NCLT at
the instance of one of the directors}. The interim order
passed by this Court has been in operation since 12th
March, 2014. The said interim order would, continue for a
further period of 4 weeks in order to enable the Plaintiff to
approach the NCLT ... "
18. Thus facts discussed above do satisfy this Court has no jurisdiction to
entertain this petition.
19. Even otherwise, a bare perusal of Section 241,242,246 r/w 339 would
reveal they are not dependent upon even filing of a SFIO report u/s 212 (12)
of the Act. The Central Government, at any stage, on basis of any material
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Signing Date:14.09.2021 14:41
before it, form an opinion to file petition under Section 241,242,246 r/w
339 of the Companies Act. In the present case, though the Central
Government has decided to file the same after receipt of SFIO report,
however, the Act puts no fetters upon the Central Government to await a
SFIO report, to form its opinion that the affairs of the Company are being
conducted in a manner prejudicial to the public interest and of the
Company.
20. The power vested in the Central Government under Section 241 of
the Act is predicated on the protection of "public interest". This is evident
from the reading of the provision itself. Section 241 (2) provides that:
"(2) The Central Government, if it is of the opinion that
the affairs of the company are being conducted in a
manner prejudicial to public interest, it may itself apply to
the Tribunal for an order under this Chapter."
21. It is verily important and critical to note that Section 242 is a natural
corollary and sequitir to the substantive provisions of Section 241, which
mandates the Central Government, in case affairs of a Company have been
or are conducted in a manner prejudicial to public interest, the Central
Government then may itself apply for an order under this Chapter XVI of
the Companies Act. The Act has to be read in consonance and uniformity
to further the effect of the legislative intent.
22. The reliefs for disgorgement can even be sought under section 241
and 242(1)(l)(m) de hors Section 212 (14A) amendment. The Central
Government can authorize initiation of proceedings and the relief of
freezing assets and disgorgement of property under Section 241, Section
242 r/w Sec.246, and Section 339/447 of the Companies Act inasmuch as
disgorgement is a civil action in nature of an equitable relief and not a penal
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action. In Karvy Stock Broking Ltd. v. Securities and Exchange Board of
India, MANU/SB/0064/2008 it has been held that:
"...Disgorgement is a monetary equitable remedy that is
designed to prevent a wrongdoer from unjustly enriching
himself as a result of his illegal conduct. It is not a
punishment nor is it concerned with the damages
sustained by the victims of the unlawful
conduct. Disgorgement of illgotten gains may be ordered
against one who has violated the securities
laws/regulations but it is not every violator who could be
asked to disgorge. Only such wrongdoers who have made
gains as a result of their illegal act(s) could be asked to do
so. Since the chief purpose of ordering disgorgement is
to make sure that the wrongdoers do not profit from their
wrongdoing, it would follow that the disgorgement
amount should not exceed the total profits realized as the
result of the unlawful activity..."
23. Thereafter, again in Shadilal Chopra v. SEBI, the SAT, Mumbai in
Appeal No.201/2009 decided on 02.2.2009 held that:
"Disgorgement is the forced giving up of profits obtained
by illegal or unethical acts. It is a repayment of ill-gotten
gains that is imposed on wrongdoers. It is a monetary
equitable remedy that is designed to prevent a wrongdoer
from unjustly enriching himself as a result of his illegal
conduct. It is not a punishment. In this view of the matter,
no fault can be found with the impugned order passed by
the whole-time member."
24. Disgorgement occurring in Section 212 (14A) cannot be read in
blissful isolation whereas, the length and breadth of the Act, chapter and
verse bespeaks of such properties/ shares/ debentures, to be frozen/
liquidated/disposal/ sold for utilization in furtherance of public interest by
way of sale, recovery of undue gains to alleviate the wrong done to persons/
financial institutions.
25. Further, the impugned letter dated 29.06.2019 and corrigendum dated
18.11.2019 is not to be read as judicial order/ or a statute. It is an executive
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order which flows from the statutory scheme as per Section 241, 242, 246
and 339 of the Companies Act.
26. The contention that no charges have been framed as yet does not hold
a ground since filing of company petition under Section 241(2) is not
dependent on filing of the chargesheet in the complaint.
27. In the circumstances, there is no merit in the petition(s) and both the
petition(s) are accordingly dismissed. Pending application(s), if any, also
stands disposed of.
YOGESH KHANNA, J.
SEPTEMBER 14, 2021 DU W.P.(Crl) No.1823/2020 & W.P.(CRL) 1414/2021 Page 14 of 14 Signature Not Verified Digitally Signed By:PRADEEP SHARMA Signing Date:14.09.2021 14:41