Sambhav Energy Ltd vs Union Of India

For Appellants : Mr. Yatin Oza, Senior Advocate assisted by Mr. Anup Jain, Advocate

For Respondent: Mr. Ashim Sood, CGSC, Ms. Payal Chandra, Advocate Mr. Saud Ahmad, Joint Director, SFIO

ORDER

07.12.2018 The 'Union of India' moved an application under Section

241read with Section 242 of the Companies Act, 2013 in public interest alleging

the acts of serious fraud against 'M/s. Sambhav Energy Limited & 13 others'

(appellants herein). In the said petition (C.P. No. 31/IB/2018), the National

Company Law Tribunal, Chennai Bench, (for short, 'the Tribunal') passed the

impugned interim order on 8th August, 2018 with the following directions:

"After hearing the Learned ASG and the counsel for

1st Respondent Company at length, and perusal of record

including the Memo filed on behalf of 1st Respondent

Company, the order given is as follows :

i) The 1st Respondent Company viz. M/s.

Sambhav Energy Limited, is hereby 2

restrained from transferring its

immovable properties in any manner or

encumbering the same until further

orders

ii) The 1st Respondent Company is

restrained from transferring/

withdrawing any money from its

accounts except to meet the legitimate

monthly expenses, which shall not be

more than average monthly expenses as

have been incurred during three months

preceding 31st of July 2018.

iii) If any expenditure/expenses is required

to be incurred over and above the

average monthly expenses as was done

during three preceding months, then, 1st

Respondent Company shall obtain prior

approval from this Bench.

iv) No Board Meetings or the other General

Meetings including Annual General

Meetings will be conducted without

seeking prior permission of this Bench

till further orders. "

2. Similar matters fell for consideration before this Appellate Tribunal

in 'Company Appeal (AT) No. 266 of 2018 - Kuldeep Kumar Dangi' and other

Company Appeal (AT) No. 374 of 2018 3

connected appeals, in which one Mr. Shyam Murari Nigam was appointed as

Executive Officer by the Union of India. In the said appeal, the court passed the

following order on 4th October, 2018 :

"O R D E R

"The Respondent- 'Union of India' in their

counter affidavit stated that investigation carried

out by the Serious Fraud Investigation Office

(SFIO) revealed a large scale fraud perpetrated by

the 'Adarsh Group of Companies', has also taken

the following plea:

"9. It is submitted that no amounts

may be permitted to be released in respect

of the Appellant Companies for undertaking

new projects or repayment of loans to its

promoter society or related entities/ Group

Companies as the same would again

become a front for siphoning off money and

defeat the very purpose of freezing the

accounts of the Appellant Companies,

pending investigation. Any payment made

by the Appellant Companies should be

strictly only to service legitimate vendors for

verifiable expenses for ongoing, existing

projects.

Company Appeal (AT) No. 374 of 2018 4

10. It is further submitted that the

Appellants have come on record to stated

that they have no objection if any officer

from the Ministry of Corporate Affairs is

appointed to verify and approve the

expenses of the Companies.

11. Without prejudice to the above

and in the event this Hon'ble Tribunal

accedes to the Appellant's request for

permitting payments and for appointing a

person to oversee the payments made by

the Appellant Companies, this Hon'ble

Tribunal may be pleased to appoint a

retired officer of the Central Government

having experience in finance as a Nominee

Director/ Administrative Officer for the

Appellant Companies. The appointment of

the Nominee Director/ Administrative

Officer should be at the expenses of the

Appellant Companies themselves, who

would verify and approve the legitimate

expenses of the Appellant Companies and

also meticulously scrutinizing/verifying the

end use/ utilization of the s aid amounts,

which would strictly be to service legitimate

Company Appeal (AT) No. 374 of 2018 5

vendors for verifiable expenses for ongoing

existing projects. The Respondent

respectfully submits that in view of the

Respondent's involvement in investigation

and litigation before various judicial/

quasi-judicial forums, it may not be

appropriate to have a serving officer

appointed for this purpose.

12. That in view of the facts,

reasons and averments stated in the

foregoing paragraphs, it is most humbly

prayed that this Hon'ble Tribunal may take

a view accordingly in the interest of

justice."

2. The following statement has been made

by the Union of India in their enclosure:

"The following name is proposed by the

Serious Fraud Investigation Office,

Ministry of Corporate Affairs for

appointment as Nominee Director/

Administrative Officer in terms of

Paragraph 11 of the counter affidavit:

Sh. Shyam Murari Nigam (Retd.) Member, Central Board of Direct Taxes Department of Revenue Ministry of Finance and Special Secretary to the Government of India

Company Appeal (AT) No. 374 of 2018 6

Contact No: 9013854827 Email ID: smnigam@hotmail.com"

3. Curriculum Vitae of Mr. Shyam Murari

Nigam has been enclosed.

4. Learned counsel appearing on behalf of

the Respondents submits that they have no

objection with regard to the suggestion made at

paragraph nos. 10 & 11 of the reply affidavit

filed by the Union of India. Learned counsel

raised objection with regard to the statement

made at Paragraph 9 of the reply affidavit.

5. Having heard learned counsel for the

parties, we pass following interim order for the

present.

i. Mr. Shyam Murari Nigam, (Retd.)

Member, Central Board of Direct

Taxes, Department of Revenue,

Ministry of Finance and Special

Secretary to the Government of India,

Contact No: 9013854827 Email ID:

smnigam@hotmail.com, is appointed

as Executive Officer to supervise all

the 32 (Appellant) Companies. The

main Company will pay the

Executive Officer remuneration of Rs.

Company Appeal (AT) No. 374 of 2018 7

2,50,000/- (Rupees Two Lakhs Fifty

Thousand Only) per month. He

should be provided with a Car with

200 litres of petrol and other facilities

to which a Group-A Officer of the

Central Government is entitled to.

This will be in addition to actual

expenses as may be incurred by the

Executive Officer for visiting the 32

Companies or for any other official

purposes.

ii. The Board of Directors of respective

Appellant Companies will function

and shall take all steps and decision

but only with the prior approval of the

Executive Officer, who in his turn will

ensure that the Appellant Companies

continues to be remain going

concern(s). If the Board of Director's

or any of the officer of any Company

make hindrance in the functioning of

the Executive Officer, the Officer may

bring it to the notice of this Appellate

Tribunal.

Company Appeal (AT) No. 374 of 2018 8

iii. The person(s), who are operating the

Bank accounts of respective

Companies may do so only with the

approval of the Executive Officer for

the purpose of day to day functioning

only. No fund or amount should be

diverted in favour of any third party

without prior approval of the

Executive Officer. The Executive

Officer will ensure that the expenses

for the day-to-day functioning of the

Company are cleared, which may

include the expenses towards supply

of material(s) for construction of the

building(s) and other infrastructures,

expenses of workmen, employees

and officers, electricity charges,

water charges, taxes etc. The Serious

Fraud Investigation Office is directed

to co-operate with the Companies

through the Executive Officer and will

allow to the Officers through

Executive Officer to deal with the

Bank accounts etc. for

Company Appeal (AT) No. 374 of 2018 9

implementation of direction of this

Appellate Tribunal.

iv. Apart from the salary, wages,

payment towards electricity, water

charges, taxes if there is any doubt

with regard to expenses to be cleared

in favour of one or other party, the

Executive Officer will ask the

concerned Board of Directors/

Officers of the Company to give

clarification. On receipt of such

clarification and if satisfied, the

Executive Officer may clear the bills.

v. The Appellant Companies will not

undertake any new project(s) and

will complete the projects in hand.

Only on completion of the present

projects, the companies may take

steps for new projects, with the

approval of the Executive Officer.

vi. Loans payable to the 'Financial

Creditor' or the 'Operational

Creditor' should be cleared to

ensure that no insolvency

proceeding is triggered against any

Company Appeal (AT) No. 374 of 2018 10

of the Companies. If there is any

'existing dispute' with regard to

amount payable to any 'Operational

Creditor', who have supplied goods

and rendered services, in such case,

loan may not be cleared.

vii. Taking into consideration that the

main business of the Companies are

construction of projects for allotment

of flats and commercial premises to

the allottees, allotment and

conveyance should be made in

favour of valid allottees, only after

verification by the Executive Officer

to ensure that 'Corporate Insolvency

Resolution Process' is not initiated

by any of the allottee against the

Companies.

6. The Central Government will inform of

this order to Mr. Shyam Murari Nigam. The

Registry of NCLAT is also directed to intimate

this order to Mr. Shyam Murari Nigam in the

address aforesaid.

Post these appeals 'for admission' on 28th

November, 2018.

Company Appeal (AT) No. 374 of 2018 11

During the pendency of the appeals, any

decision taken by the National Company Law

Tribunal, shall be subject to the decision of the

appeals. The Serious Fraud Investigation Office

will continue with its investigation.

The interim order passed by the Tribunal

stands modified to the extent above."

3. Today, it is informed that 'Union of India' has not replaced the

management of the Company.

4. Having heard the parties, while we are not inclined to interfere with the

order dated 8th August, 2018, as suggested by the learned counsel for the Union

of India, appoint 'Mr. Shyam Murari Nigam' as 'Executive Officer' to look into the

affairs of the present company.

5. The Executive Officer will ensure that the company remains on going and

salary and wages of employees and workmen, payment towards electricity and

water charges, taxes, if required to be made, the management of the company

may bring the matter to the notice of the Executive Officer and in his absence

before the Investigation Officer, SFIO, who after verification will allow withdrawal

of such amount to ensure payment of salary and wages of employees and

workmen etc.

6. In 'Company Appeal (AT) No. 266 of 2018' we have fixed the salary of Mr.

Shyam Murari Nigam. However, as he will also function as 'Executive Officer' of

the present company in addition to the company in which he has engaged by the

Union of India, he will be entitled for admissible allowances and actual expenses

as may be incurred by him for performing the duties of the present company, in

Company Appeal (AT) No. 374 of 2018 12

addition to what he is entitled pursuant to the order passed in respect of the

other companies.

7. So far as the construction of flats and commercial premises by the

company is concerned, Mr. Shyam Murari Nigam, EO will verify and if found that

the construction has already been started, in such case, they will allow

construction to continue in terms of the order passed on 4th October and

modified on 31st October, 2018 in 'Company Appeal (AT) No. 266 of 2018'.

The appeal stands disposed of with aforesaid observations and directions.

[Justice S.J. Mukhopadhaya] Chairperson

[ Justice Bansi Lal Bhat ] Member (Judicial)

/ns/uk /

Company Appeal (AT) No. 374 of 2018