Asha Kiran vs Union Of India

IN THE MATTER OF: Mrs.Asha Kiran. W/o Sh. Ramesh C Bawa R/o W-78, Greater Kailash - I New Delhi - 110046 ...Appellant

Vs.

Union of India Ministry of Corporate Affairs, Through Regional Director (Western Region), Everest 5th Floor, 100, Marine Drive, Mumbai - 400 002 ... Respondent

AND

Company Appeal (AT) No. 251-252 of 2019

IN THE MATTER OF: Ms.Aakanksha Bawa. D/o Sh. Ramesh C Bawa R/o W-78, Greater Kailash - I New Delhi - 110046 ...Appellant

Vs.

Union of India Ministry of Corporate Affairs, Through Regional Director (Western Region),

Company Appeal (AT) No. 249-250 OF 2019 Company Appeal (AT) No. 251-252 of 2019 2

Everest 5th Floor, 100, Marine Drive, Mumbai - 400 002 ... Respondent

Present: For the Petitioner: Mr. Rajiv Bansal, Sr. Advocate along with Mr. Sachin.M and Mr. Anant Nigam, Advocates.

For the Respondent: Mr. Sanjay Shorey, Director, MCA and Mr. C.Balooni, Assistant Director.

( 29TH MAY, 2020)

DR. ASHOK KUMAR MISHRA, TECHNICAL MEMBER

1. The Appellants Mrs. Asha Kiran wife of Shri Ramesh.C.Bawa and Mrs.

Aakanksha Bawa daughter of Shri Ramesh C.Bawa have filed separate

Company Appeal (AT) No. 249-250/2019 and 251-252/2019 respectively

against the impugned order dated 26.04.2019 and 04.09.2019 passed by

NCLT, Mumbai Bench in M.A No.1576/2019, M.A No. 2007/2019 & M.A

No.1577/2019 and M.A No.2006/2019 in C.P No.3638/2018 respectively.

Since impugned orders are common, hence the order is passed as a

common order.

2. The Appellants have sought relief for passing an order setting aside the

impugned order dated 26.04.2019 & 04.09.2019 passed by NCLT, Mumbai

Company Appeal (AT) No. 249-250 OF 2019 Company Appeal (AT) No. 251-252 of 2019 3

Bench as also to give direction to the Banks to de-seal the accounts of the

Appellants etc.

3. As far as Company Appeal (AT) No.249-250 of 2019 is concerned, it has

been submitted that the Appellant - Mrs. Asha Kiran has accessed the joint

lockers in Axis Bank and Standard Chartered Bank on 27.03.2018,

03.12.2018, 04.12.2018, 10.12.2018, after passing of the order of wilful

disobedience of the order dated 03.12.2018 by the NCLT Mumbai by Mr.

Ramesh C.Bawa (Respondent No.315 in CP No.3638/2018) and his family

members.

4. The Appellant has submitted that the same were operated without the

knowledge of the order dated 03.12.2018 passed by NCLT Mumbai on

account of need, as the lockers had her personal belonging like jewellery

etc., which were her "stree dhan" articles. They have also submitted that if

they have alienated anything from the locker then there was no need to

operate the locker multiple times. The jewellery kept in the lockers were

duly disclosed to the income tax authorities and the entire jewellery articles

are either in her possession or in the locker. She has never been the

shareholder, Director or employees of the ILFS. It was also submitted by

the Appellant that when the application was filed in NCLT Mumbai by the

Appellant, the Union of India further produced a letter dated 08.07.2019

Company Appeal (AT) No. 249-250 OF 2019 Company Appeal (AT) No. 251-252 of 2019 4

from the SFIO which stated that the Appellant had received huge amount

from Mr. Ramesh.C.Bawa from 2008 onwards and the same were used to

purchase properties for other companies in which the Appellant was a

Director. It was also submitted by the Appellant that SFIO has completed

its investigation on 29.05.2019 and has filed a complaint in the court of

competent jurisdiction at Mumbai but no charge sheet has been issued to

the Appellant. The Appellant has submitted that the person liable under

Section 339 of the Companies Act, 2013 are the following persons :

a. Director of the company

b. Manager of the Company

c. Officer of the Company

d. Any other person who knowingly becomes a party to carrying of the

business in the manner aforesaid- in a manner prejudicial to public

interest- for any fraudulent purpose

5. The Appellant is a 3rd party to the proceedings and cannot be subjected to

an order under Section 241-242, 337 and 339 of the Companies Act, 2013.

6. While in the Company Appeal (AT) No.251-252 /2019 Miss. Aakanksha

Bawa D/o of Ramesh.C.Bawa has been impleaded because he has

transferred Rs.4.84 Crore to her account into separate transactions and

thereby they have done wilful disobedience of the order dated 03.12.2018.

Company Appeal (AT) No. 249-250 OF 2019 Company Appeal (AT) No. 251-252 of 2019 5

It was submitted that these amounts are from liquidating mutual fund

investment of Mr. Ramesh.C.Bawaa and he has asked Axis bank and ICICI

Bank on 26.11.2018 prior to the passing of order dated 03.12.2018 by

NCLT Mumbai. The money was received in his account on 30.11.2018 and

was transferred to his daughter's account on 03.12.2018 as a provisions of

her marriage expenses. The daughter, appellant has nothing to do ILFS and

she has never been any Shareholder, Director or employee of the said

Company. It was also submitted that the SFIO has completed its

investigation on 29.05.2019 and has filed a complaint in the court of

competent jurisdiction at Mumbai and no charge sheet has been filed

against the Appellant i.e of his daughter Ms. Aakanksha Bawa. She is not

attracted by the provisions of Section 339 of the Companies Act, 2013 and

she is a 3rd party of the proceedings and cannot be subjected to an order

under Section 241-242, 337 and 339 of the Companies Act, 2013.

7. The Director represented Union of India, has submitted in Company

Appeal(AT) No. 249-250/2019 & 251-252/2019 that around September,

2018 Series of default were made by entities in the IL&FS Group during

June to September 2018 due to mismanagement and mis-goverance by the

then existing Board of Director of IL&FS and Group Companies. It has

also been submitted that the exposure in the IL&FS group is very large

Company Appeal (AT) No. 249-250 OF 2019 Company Appeal (AT) No. 251-252 of 2019 6

both to the public and private sector banks and financial institutions and

this will have a catastrophic impact on the economy of the country. It was

also stated that based on the report of the Registrar of Companies, Union

of India has filed a Petition under Section 241-242 of the Companies Act,

2013 before NCLT Mumbai Bench bearing Company Petition No. 3638 of

2018; the charges are on Mr. Ramesh .C.Bawa that he has drawn hefty

salaries and siphoned funds.

8. It was also submitted by Director that on the basis of SFIO Report and

requisite application vide order dated 03.12.2018, the NCLT restrained the

erstwhile Directors inter alia including Mr. Ramesh.C.Bawa from creating

a charge or lien or creating a 3rd party interest or in any way alienating the

movable or immovable properties owned by them including jointly held

property. The Director has submitted that in December, 2018 it was

brought to a notice by Indian Bank Association that Mr. Ramesh.C.Bawa

has operated its bank account and has transferred a large sum of money

Rs.1.14 Crore plus on December 3, 2018 to his daughter account on the

same day the NCLT has restrained the order and his wife has also operated

the locker. They have observed that accordingly that Appellants in both the

cases are a proper and necessary parties as in their absence no effective

decree can be made. It has also been stated that CP No.3638 has been filed

Company Appeal (AT) No. 249-250 OF 2019 Company Appeal (AT) No. 251-252 of 2019 7

inter alia in the backdrop that the affairs of IL&FS group were mismanaged

by the Erstwhile Directors etc.

9. Furthermore, the Director has pointed out that Mr. Ramesh. C. Bawa has

transferred large sum of money to the company where the Appellant is a

Director and these monies are the proceeds of mismanagement/fraud on

the part of Mr. Ramesh C.Bawa.

10.We have gone into a detail and observed that as far as operation of locker

is concerned if the Appellant have ulterior motive then they should have

done on the very first day and would not have waited for the subsequent

times. We have gone through the Hon'ble Supreme Court judgment

delivered on 12th February 2020 Usha Ananthasubramanian. Vs. Union of

India in Civil Appeal No. 7604 of 2019. The fact of the two cases are

different Ms.Usha Ananthasubramanian was the former MD and CEO of

Punjab National Bank for a limited period 2015 to 2017 whereas she was

not related party to Directors of M/s.Gitanjali Geems ltd., and the charges

on her was "omitted to take precaution or preventive steps to prevent the

fraud perpetrated by Mr. Neerav Modi"; whereas in the present case either

the money has been transferred by Mr. Ramesh.C.Bawa, or non-

compliance of NCLT order has happened. Impleading a party does not

mean that charges are proved on them but their presence would enable the

Company Appeal (AT) No. 249-250 OF 2019 Company Appeal (AT) No. 251-252 of 2019 8

court to effectively and adequately adjudicate the matter involved in the

case. Hence both appeals are dismissed. No order as to costs.

(Justice Jarat Kumar Jain) Member (Judicial)

(Mr. Balvinder Singh) Member (Technical)

(Dr. Ashok Kumar Mishra) Member(Technical)

RK

New Delhi

Company Appeal (AT) No. 249-250 OF 2019 Company Appeal (AT) No. 251-252 of 2019