Delhi High Court
M/S Brain Bridge Advertising & ... vs M/S Ambica Research & Development ... on 8 May, 2012
Author: Manmohan
10
$~
* 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
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
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,
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
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
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
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
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
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."
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.
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
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
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
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
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.
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
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
