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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CO.PET. 123/2010
M/S BRAIN BRIDGE ADVERTISING
& MARKETING PVT LTD ..... Petitioner
Through: Ms. Sujata Kashyap, Advocate.
versus
M/S AMBICA RESEARCH
& DEVELOPMENT P. LTD. ..... Respondent
Through: Mr. Shailendra Singh, Advocate.
% Date of Decision: 08th May, 2012
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
JUDGMENT
MANMOHAN, J (Oral)
1. Present winding up petition has been filed under Section 433(e) read with Sections 434 and 439 of the Companies Act, 1956 stating that respondent company is unable to pay its debts allegedly amounting to `1,18,12,836/-.
2. It is stated in the petition that respondent company placed various orders for release of advertisements in various newspapers all Co. Pet. 123/2010 Page 1 of 17 over India on the petitioner company, who in turn raised its bills on the respondent. Ms. Sujata Kashyap, learned counsel for petitioner states that till 2007, the aforesaid amount was due and payable by the respondent to petitioner.
3. To prove that the aforesaid debt is an admitted one, Ms. Sujata Kashyap, relied upon page 456 of the paper book to show that respondent company itself on 28th July, 2007 had admitted that an amount of `1,07,17,568/- was due and payable to the petitioner by the respondent. The aforesaid letter written by the respondent to the petitioner is reproduced hereinbelow:-
"28.07.07 To M/s Brain Bridge Advt. & Marketing Pvt. Ltd. 501, Ashok Bhawan, 93, Nehru Place, New Delhi.
Sub: Your Statement of A/c for the year 2007-08 (A.Y.-2008-09) Dear Sir, We acknowledge the receipt of your statement of A/c from 1-4-07 to 30-6-07. On observation we have found the following discrepancies.
1. The opening Debit balance of 2007-08 of Rs.82,12,476.80 as per your statement, should be Rs.75,57,777.90 Co. Pet. 123/2010 Page 2 of 17
2. It seems that the difference is on account of some bills not received or booked twice and differences in bill amount. You may collect our statement of 2006-07 to tally accounts alongwith TDS Certificates to clarify.
3. Your Bill Nos. 100086 dt. 15.05.07 for Rs.1,04,280.00 B. Nos. 100179 dt. 25.5.07 for Rs.2,08,597.00, B. No.100352 dt. 30.6.07 for Rs.1,09,391.00 are not with the A/cs department.
4. Your closing balance as per our records is Rs.1,07,17,568.00 and not `1,18,12,836.00 as reflected in your statement.
Thanking you For Ambica Research & Development Pvt. Ltd. sd/-
Accounts Deptt."
(emphasis supplied)
4. Ms. Kashyap also referred to the TDS Certificates issued by the respondent from time to time.
5. On the other hand, Mr. Shailendra Singh, learned counsel for respondent company states that respondent company's liability with petitioner's consent been taken over by M/s. Vian Infrastructure Ltd. and petitioner had agreed to recover its dues from M/s. Vian Infrastructure Ltd.
6. When learned counsel for respondent was asked to refer to any agreement executed between the parties, he candidly admitted that there was no such document. However, in support of his submission, Co. Pet. 123/2010 Page 3 of 17 he tried to rely upon the status report of the Economic Offences Wing, Crime Branch, New Delhi filed by the Delhi Police in Bail Application No. 150/2012. The paragraph relied upon by Mr. Shailendra Singh, learned counsel for respondent is reproduced hereinbelow:-
"6. That the petitioner/accused Vijay Kumar Sharma, has wrongly mentioned in para 4 of the present petition that company M/s. Vian Infrastructure Ltd. vide letter Dt. 01.07.06 had hired his services as Consultant. The investigation conducted, so far has established that petitioner Vijay Kumar Sharma was managing the affairs of M/s. Vian Infrastructure Ltd. even before his appointment on 01.07.06 and after his reliving from the same on 30.03.07. Investigation has revealed that on 14.8.06, M/s. Vian Infrastructure Ltd. was incorporated with Registrar of Companies, Delhi vide registration No. U70109DL2006PLC152025. During the course of investigation, Sh. Sanjeev Bhargava, Managing Director, M/s. Brain Bridge Advertising and Mktg. P. Ltd. R/o 119, Swami Vivekanand Marg, Allahabad U.P. joined the investigation and handed over two original pages of the Letter of Arrangement dtd. 01.04.06, (even before the said appointment) for the purpose of the advertisements of two companies i.e. M/s. PSG Developers & Engineers Ltd. and M/s. Vian Infrastructure Pvt. Ltd. The said letter of Arrangement was executed between Sh. Sanjeev Bhargava, on behalf of M/s. Brain Bridge Advertising and Mktg. P. Ltd. and petitioner/accused Vijay Kumar Sharma, on behalf of M/s. Vijay associate."
7. In rejoinder, Ms. Sujata Kashyap, learned counsel for petitioner denied that the dues of the petitioner had been settled through the accounts of M/s. Vian Infrastructure Ltd. She contended that if what was stated by Mr. Shailendra Singh, learned counsel for petitioner was Co. Pet. 123/2010 Page 4 of 17 correct, then the respondent would not have issued the letter dated 28th July, 2007 acknowledging its dues at page 456 of the paper book.
8. Ms. Kashyap also relied upon the letter dated 05th June, 2008 written by M/s. Vian Infrastructure Ltd. The relevant portion of the said letter reads as under:-
"We acknowledge the receipt of your letter dt. 1st June, 2008. We understand your apprehension and we appreciate your releasing ads of our sister concerns PSG developers and Engineers Ltd. and Ambica Research & Development Pvt. Ltd. as well.
We value our relationship that is why inspite of your payments not being made from M/s Ambica Research & Development Pvt. Ltd. & PSG Developers & Engineers Ltd. We have been clearing your dues of both the above mentioned companies also from M/s Vian Infrastructure Ltd. since July'06. At times we have been paid directly to the publications on your behalf acknowledging our liability of our sister concerns as well.
But recently M/s. PSG Developers & Engineers Ltd. have landed into trouble and cases are pending in EOW against them. You are well aware of the situation hence we do not wish to associate our company with PSG, so whatever payments we have made to you in 2006-07 and 2007-08 till date on behalf of M/s PSG Developers & Engineers Ltd. and M/s Ambica Research & Development, have been entered as advance payment to you from M/s. Vian Infrastructure Ltd. Kindly enter accordingly in your books of accounts and this will be adjusted against your advertising bills in M/s. Vian Infrastructure Ltd.
Now, if we have to further clear dues of our sister concerns as well from Vian Infrastructure Ltd. we will need this letter from you requesting us to clear the dues of publication from our account by way of land barter.
However, we assure you that this letter would only be used for our Co. Pet. 123/2010 Page 5 of 17 internal adjustment and we will not use this legally to claim our dues from your organisation.
To ensure this we will jointly approach the publications and offer them land/villas/flats at our various projects at Jaipur, Agra or Haridwar and convince them to accept this against your outstanding dues. On their consent we will allot land/villas/plots as per their requirement and do the Buyers Sellers agreement and issue receipts to them from M/s Vian Infrastructure Ltd. debiting it to your account as adjustment and deliver them the land/villas/plots by doing registry in their favour and giving them possession after development.
However, if we are unable to give the plots, villas to the publications within the stipulated time frame duly developed, then the publications are free to claim their refund in full from us.
We look forward for a long standing relationship with you."
(emphasis supplied)
9. Having heard the parties, this Court is of the opinion that in view of the respondent's admission contained in the letter dated 28 th July, 2007 at page 456 of the paper book, the petitioner is an admitted creditor. Nothing has been placed on record to show that any payment had been made or land had been transferred to the petitioner by the respondent or by M/s. Vian Infrastructure Ltd. subsequent to 28th July, 2007. The status report filed by Delhi Police only shows that some payments in the distant past had been made on behalf of the respondent by M/s. Vian Infrastructure Ltd. and that too, in view of Co. Pet. 123/2010 Page 6 of 17 the inquiry by the police the said payments had been subsequently shown as advances to petitioner. Consequently, the defence set up by the respondent is a moonshine and a sham.
10. Since the petitioner is an admitted creditor and the respondent is unable to pay its debts, present petition is admitted and respondent company is directed to be wound up. The Official Liquidator attached to this Court is appointed as Provisional Liquidator of the respondent company and is directed to forthwith take over the assets and records of the respondent company. For this purpose, Provisional Liquidator would be entitled to obtain police aid and the local police is directed to render all assistance to the Provisional Liquidator.
11. In the meantime, respondent-company, its Directors, officers, employers, authorised representatives are restrained from selling, transferring, alienating, encumbering and parting with the possession of any movable and immovable assets and funds of the respondent company. They are also restrained from withdrawing any money from the accounts of the respondent company.
12. The Directors of the respondent company are directed to forthwith hand over all the records of the respondent company to the Co. Pet. 123/2010 Page 7 of 17 Provisional Liquidator including its books of account. The Directors of respondent company are also directed to provide the statement of affairs and file their statements under Rule 130 within a period of twenty one days as provided for in the Companies Act, 1956.
13. Let citations be published in the newspapers, namely, 'The Statesman (English edition) and 'Veer Arjun' (Hindi edition) as well as in 'Delhi Gazette'.
14. Ms. Sujata Kashyap, learned counsel for petitioner states that petitioner itself shall get the citations published in the aforesaid newspapers as well as in 'Delhi Gazette'.
15. Let a fresh status report be filed by the Provisional Liquidator before the next date of hearing.
16. List the matter on 01st October, 2012.
17. In fact, a detailed perusal of the status report placed on record by the learned counsel for respondent is a severe indictment of the way Mr. Vijay Kumar Sharma and his family members have been managing their companies. The relevant paragraphs of the said report are reproduced hereinbelow:-
"13. This plea of petitioner Vijay Kumar Sharma that M/s Vian Infrastructure Limited had hired his services is only an Co. Pet. 123/2010 Page 8 of 17 attempt to mislead as earlier the accused Surya Kirtichand Thapar, Managing Director of M/s Vian Infrastructure Limited, was an employee in JVG, another company of petitioner/accused Vijay Kumar Sharma.
14. Earlier, the present Petitioner Vijay Kumar Sharma was arrested in other cases and his interrogation revealed that he studied only up to class 10th. On the other side, the plea of petitioner Vijay Kumar Sharma is that M/s. Vian Infrastructure Limited had hired his services as Marketing & Financial Consultant on a monthly remuneration of Rs.10,00,000/-. These facts clearly establish that the petitioner's claim is totally false / baseless.
15. Investigation has revealed that the petitioner / accused Vijay Kumar Sharma was not only the authorized signatory in eight different banks of M/s Vian Infrastructure Ltd., "SINGLY WITHOUT ANY LIMIT but also for a long time he was the only authorized person to deal these accounts. In other words, even the directors of the company were not authorized to deal with these accounts. The details of such banks / accounts are as under:-
S.No Name and Address of the Account Number Remarks
Bank
1. Axis Bank, Saket, New 160010200008945 "Singly
Delhi without any
limit."
2. Axis Bank Saket, New 160010200008426 "Singly
Delhi without any
limit."
3. Axis Bank, Jaipur 010010200038872 "Singly
without any
limit."
4. Axis Bank, Agra 086010200009713 "Singly
without any
limit."
5. Axis Bank, Haridwar 358010200002332 "Singly
without any
limit."
Co. Pet. 123/2010 Page 9 of 17
6. Axis Bank, Indore 043010200039145 "Singly
without any
limit."
7. Kotak Mahindra Bank, 01722010002031 "Singly
GF-3A-3J, Ground Floor, without any
Ambadeep Building, 14, limit."
K.G. Marg, New Delhi
8. Yes Bank Ltd., Chanakya 000382000001074 "Singly
Puri Branch, New Delhi. without any
limit."
16. Investigation conducted so far also reveals that the accused, Vijay Kumar Sharma and other accused directors of the said company misused the funds and an amount of more than Rs.11.72 Crores were withdrawn in cash through self cheques.
17. During investigation, accused Surya Kirtichand Thapar, one of the directors in M/s. Vian Infrastructure Ltd., was arrested on 07.08.09. Five other co-accused persons, including the present petitioner are absconding and have already been declared Proclaimed Offenders from the Court of Ld. Additional Chief Metropolitan Magistrate, Patiala House Court. The charge-sheet against the accused Surya Kirtichand Thapar has already been filed and the next date of hearing in the matter is fixed for 08.02.2012, before the Ld. Trial Court.
18. The modus operandi adopted by accused / Petitioner Vijay Kumar Sharma is that he floats a large number of companies and rotates the Directors, funds and MOUs between these companies to keep the innocent investors and government agencies in dark. The Petitioner Vijay Kumar Sharma and other directors are having interconnected links in several companies including M/s PSG Developers & Engineers Ltd, M/s Vian Infrastructure Ltd., M/s JVG groups of companies, M/s Yusaf Eng. Ltd., etc. The accused persons / directors of these companies in active collusion with each other rotated themselves in these companies and transferred / siphoned off / utilized the funds collected from the innocent investors by opening a large number of bank accounts in the name of these companies. The present petitioner / accused Vijay Kumar Sharma is the mastermind behind these activities.Co. Pet. 123/2010 Page 10 of 17
The chart showing the connection between these accused persons is produced below:-
S.N. Name of the Directors Details of the Companies
1. Vijay Kumar Sharma S/o Sh. Suraj Director in M/s JVG Prakash Sharma R/o F-130-A West Director in M/s Yusaf Eng.
Avenue Forest Lain Sainik Farm, New Director in M/s Ayushi
Delhi. Buildestates Pvt. Ltd.
Authorized signatory of the
M/s VIAN
Authorized signatory of the
M/s PSG Developers
2. Surya Kirtichand Thapar S/o K.R. Thapar Director in M/s JVG
R/o B-243, Florance Elite, Sushant Lok - Director in M/s VIAN III, Sector - 57, Gurgaon, Haryana. Director in M/s GOGA Director in M/s Yusaf Eng.
Director in M/s Ayushi Buildestates Pvt. Ltd.
3. Survesh Chowdhry S/o Rajender Singh Director in M/s VIAN
Chowdhry R/o A-105 Sector 36 Noida, Director in M/s Yusaf
Uttar Pradesh. Properties
Director in M/s. Mauve Farms
Pvt. Ltd.
Director in M/s Sajjad Pro.
Pvt. Ltd.
4. Janardan Prasad Sharma S/o C.P. Director in M/s VIAN
Sharma R/o 43 Naugadh Anchal Nagar Director in M/s PSG
Distt. Gaya, Bihar, (Voter ID No. HCQ Director in M/s Sajjad
0777003 - Electrol Registration Officer Director in M/s Yusaf
231, Gaya Mufassil Constituency) Properties
5. Pranay Kumar S/o Gauri Shankar Sinha Director in M/s VIAN
R/o RZB - 116 A Street No.9 Dev Kunj Director in M/s PSG
Rajnagar-2 Palam Colony, New Delhi. Director in M/s Sajjad
Director in M/s Yusaf
Properties
Director in M/s Ayushi
Buildestates Pvt. Ltd.
6. Sajjad Alam S/o Mohd. Fasihuddin R/o Director in M/s PSG
Azad Nagar Ward No.12 PO & Distt. Director in M/s Sajjad
Araria Bihar. Director in M/s JVG
Director in M/s Yusaf
Properties
7. Sudhir Kumar Rai R/o H. No. B-154, Director in M/s PSG
Chhatarpur Enclave, New Delhi Director in M/s JVG signed on
Co. Pet. 123/2010 Page 11 of 17
behalf of M/s Sajjad in favour
of M/s VIAN for Agra project
all documents were signed by
him as one as Director &
other as authorized signatory
of the M/s VIAN
19. The present petitioner / accused Vijay Kumar Sharma is a habitual cheat and earlier involved / arrested in number of cheating cases including the cases registered against JVG Group of Companies, all over India. He is also an accused in the following other cheating cases registered against M/s PSG Developers & Engineers Ltd. for similar type of offences:-
(a) FIR No. 106/07 U/S 406/409/420/120B IPC PS Parliament Street New Delhi.
(b) FIR No. 135/07 U/S 406/409/420/120B IPC PS Parliament Street New Delhi.
(c) FIR No. 136/07 U/S 406/409/420/120B IPC PS Parliament Street New Delhi.
(d) FIR No. 251/09 U/S 406/409/420/120B IPC PS EOW, Crime Branch New Delhi.
(e) FIR No. 39/09 U/S 406/409/420/120B IPC PS EOW, Crime Branch New Delhi.
(f) FIR No. 315/09 U/S 406/409/420/120B IPC PS Okhla Industrial Area New Delhi."
(emphasis supplied)
18. From the aforesaid status report, it is apparent that Mr. Vijay Kumar Sharma and his second wife, Mrs. Anita Sharma have no regard for law. Mr. Sharma is perpetrating one scam after another. While in the 1990's, Mr. Vijay Kumar Sharma and his family Co. Pet. 123/2010 Page 12 of 17 members had floated 'ponzi investment schemes' wherein they duped a large number of small and middle class investors by promising high returns, in the decade of 2000, they once again duped a large number of small and middle class flat buyers by promising them residential accommodation. As pointed out in the SFIO report, in JVG Group of Companies, Mr.Vijay Kumar Sharma and his second wife Mrs. Anita Sharma, promoter and director of company in liquidation had purchased personal jewellery, farm house and various other valuable immovable properties in their personal names as well as in the names of their close relatives from the funds of JVG Finance Company. After the JVG finance scam was detected by Reserve Bank of India, Mr. Sharma went on to perpetrate the land scam by incorporating and promoting M/s Vian Infrastructure Ltd. besides many other companies. The interconnection between companies floated by Mr. Vijay Kumar Sharma and his second wife is as an admitted position inasmuch as the company in liquidation's defence is that its liability to pay debts was taken over by company's promoter Mr. Vijay Kumar Sharma.
19. Further, in view of the aforesaid facts, the SFIO is directed to Co. Pet. 123/2010 Page 13 of 17 investigate the affairs of companies, namely, M/s. Vijay Associates, M/s. Ayushi Buildestates Pvt. Ltd., M/s. Mauve Farms Pvt. Ltd., M/s Yusaf Properties and M/s. Sajjad Pro. Pvt. Ltd. in which either Mr. Vijay Kumar Sharma or his two wives or his associates had been Directors or had been managing its affairs. The inquiry must be completed expeditiously and in a time bound manner because, given the past conduct of Mr. Vijay Kumar Sharma, by the time the scam is unearthed, the valuable assets and funds of companies in question, already stand siphoned off. After completion of inquiry, the report must be submitted to this court, preferably within a period of eight weeks.
20. This Court is of the opinion that Mr. Vijay Kumar Sharma and his family members are targeting small and middle class investors as they know that they are unorganized and do not have resources to defend themselves. Even the statutory authorities like the Official Liquidator's office who are entrusted with the duty to bring the culprits to book are not able to keep pace with the scams perpetrated by Mr. Vijay Kumar Sharma and his family members. In fact, the Official Liquidator's office is ill-equipped, under-staffed, untrained Co. Pet. 123/2010 Page 14 of 17 and manned by non-professionals. Had it not been for the SFIO and police inquiry, Official Liquidator would never even have come to know about the real diversion of funds even in JVG Finance Company, despite lapse of more than ten years.
21. Consequently, this Court is of the opinion that in order to effectively prevent Mr. Vijay Kumar Sharma from committing any future financial scam, Mr. Vijay Kumar Sharma and his two wives cannot be permitted to incorporate or manage any company till the proceedings in JVG Group Companies and M/s. Vian Infrastructure Limited are brought to a logical conclusion. Accordingly, the Central Government is directed to ensure that Director's identification number issued to Mr. Vijay Kumar Sharma and his two wives namely, Mrs.Veena Sharma and Mrs. Anita Sharma are immediately revoked and the statutory authorities are directed to ensure that they are not issued any such number without taking prior permission of this Court.
22. All Banks are directed to ensure that Mr. Vijay Kumar Sharma and/or Mrs. Veena Sharma and/or Mrs. Anita Sharma are not allowed to operate and/or open any bank accounts of the aforementioned companies or any other company. However, it is clarified that Mr. Co. Pet. 123/2010 Page 15 of 17 Vijay Kumar Sharma and/or Mrs. Veena Sharma and/or Mrs. Anita Sharma are permitted to operate their private personal bank accounts, except to the extent that they have been attached by this Court vide order dated 30th April, 2012 in CCP(Co.) 17/2008 & Co. Appl. 867/2011 in Co. Pet. 265/1998. Mr. Vijay Kumar Sharma, Mrs. Veena Sharma and Mrs. Anita Sharma are directed to disclose the details of the accounts which they want to operate as their personal account.
23. Further, to avoid harassment to any other individual bearing the same name, the Reserve Bank of India is directed to issue suitable directions to all banks clearly identifying the aforesaid individuals as well as their parent's name and Pan number.
24. Moreover, keeping in view this Court's orders dated 30 th April, 2012 passed in CCP(Co.) 17/2008 & Co. Appl. 867/2011 in Co. Pet. 265/1998 and 07th May, 2012 passed in Co. Appl. 871/2012 in Co. Pet. 265/1998, this Court finds that though a number of statutory authorities are investigating Mr. Vijay Kumar Sharma, there is a lack of coordination amongst the said authorities.
25. Consequently, the Secretary, Ministry of Corporate Affairs, is Co. Pet. 123/2010 Page 16 of 17 directed to convene a meeting once in a month to ensure that coordinated action is taken by all the statutory authorities like Reserve Bank of India, Economic Offences Wing, Delhi Police, Central Bureau of Investigation, Serious Fraud Investigation Office and Official Liquidator's office.
26. As stated hereinabove, this extraordinary direction is necessitated so as to prevent perpetration of any future scam by Mr.Vijay Kumar Sharma and his family members.
27. Since this Court is also informed that a coordinate Bench of this Court has rejected Mr. Vijay Kumar Sharma's anticipatory bail application and the Supreme Court has cancelled his bail, let the DCP, Economic Offences Wing, Delhi Police be personally present in Court on 10th May, 2012 at 2:15 p.m.
28. Order dasti under the signatures of Court Master.
MANMOHAN, J MAY 08, 2012 js Co. Pet. 123/2010 Page 17 of 17