Shri Bal Kishan Saini vs M/S Devred India Ltd., (In Liqn.) & ...
2013 Latest Caselaw 2951 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


+                      CO. APP. 42/2013


SHRI BAL KISHAN SAINI                             ..... Appellant
              Through:           Mr.U.C.Bhandari, Advocate.

              versus

M/S DEVRED INDIA LTD., (IN LIQN.) & ORS ..... Respondents
              Through: Mr.Ashish Makhija, Advocate for the
                         Official Liquidator.
                         Mr.S.K.Chaudhary, Advocate for the
                         Respondent No.2.

CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL
HON'BLE MS. JUSTICE PRATIBHA RANI

                            ORDER (ORAL)

: REVA KHETRAPAL, J.

1. The present Appeal is directed against the order dated

16.5.2013 passed by the learned Company Judge in CP No.200/07 for

investigation of the matter by the Serious Fraud Investigation Office

(for short "SFIO").

2. The brief facts leading to the filing of the present Appeal are

that in July, 2007 a winding up petition under Section 433(f) of the

Companies Act, 1956 in respect of the Company M/s. Devred India

Pvt. Ltd. presently under liquidation was filed by the Respondent

No.2 in his capacity as Director and 50% shareholder of the

Company. The said winding up petition was admitted by the

Company Judge vide order dated 6.12.2010. The Official Liquidator

attached to the Court was appointed as provisional Official

Liquidator. By the same order, the Company Court appointed Mr.

Anil Bagai, Chartered Accountant to assist the Official Liquidator and

audit the accounts of the Company. The Respondent No.2 and the

Appellant were directed to file statement of affairs with the Official

Liquidator within 21 days and to furnish details of all bank accounts

of the Company within the aforesaid period. The Respondent

Company was finally wound up vide order dated 17.5.2012 after

considering all the facts and circumstances set out in the petition,

including allegations and counter-allegations inter se the parties.

3. Subsequently to the passing of the winding-up order, on the

directions of the Company Court, the Official Liquidator submitted

status report No.532/2012, which was disposed of vide order dated

1.10.2012 directing the O.L. to file a fresh status report. On the fixed

date, the O.L. filed status report No.165/2013, which was again

disposed of by directing the O.L. to file a fresh status report. The

third status report bearing No.420/2013 was then filed by the Official

Liquidator along with an application seeking directions of the

Hon'ble Company Judge to refer the case to SFIO.

4. It may usefully be noted at this juncture that the Chartered

Accountant appointed by the Company Court also submitted his

report dated 29.12.2012 before the Official Liquidator. By an order

passed in CA No.464/2013, the Company Court directed the Official

Liquidator to issue notice to the Company's ex-Accountant and to

examine him under Rule 130 of the Companies (Court) Rules, 1959

and accordingly the statement of Mr. Mangal Sen, ex-Accountant was

recorded by the Official Liquidator on 3rd May, 2013. To be further

noted at this juncture that the statements of the ex-Directors of the

Company, viz. the Appellant and the Respondent No.2 had already

been recorded by the Official Liquidator under Rule 130 of the

Company Court Rules. On consideration of the entire material passed

on record, the impugned order was passed.

5. The sole contention of the Appellant's counsel is that neither

the reports of the Official Liquidator nor the report of the Chartered

Accountant appointed by the Court nor the statements recorded before

the Official Liquidator warrant the passing of the impugned order.

We are not inclined to agree for the reason that had this been so the

Official Liquidator would not have been directed to file status reports

one after the other and three status reports would not have been filed

by the Official Liquidator. Further, a cursory look at the order shows

that the order has been passed after considering not only the reports

filed by the Official Liquidator from time to time, being status report

Nos.532/2012, 165/2013 and 420/2013, but other material on record

including the statements recorded by the Official Liquidator of the ex-

Directors of the Company and the ex-Accountant of the Company as

well as the report filed by the Chartered Accountant appointed by the

Company Court. It is further borne out from the order itself that

certain clarifications were sought by the Court from the ex-

Accountant of the Company with regard to the accounts and for the

aforesaid purpose the statements of the former Directors were shown

to him and ultimately in view of the allegations and counter-

allegations by the former Directors against each other as well as Mr.

Sen (the ex-Accountant of the Company), the O.L. sought to have the

entire matter investigated by the SFIO leading to the passing of the

impugned order. Paragraph 2 of the order, which is apposite, for the

sake of ready reference, is reproduced hereunder:-

"2. Having heard the submissions of learned counsel for the Applicant, Respondent No.2 and the OL, this Court is also satisfied that in view of the serious allegations and counter allegations made by the former Directors against each other as well as against the CA, it is necessary that the entire matter is investigated thoroughly by the SFIO."

6. In the facts and circumstances adumbrated above, we do not

find any infirmity or perversity in the impugned order. The Appeal is

devoid of merit and is accordingly dismissed.

REVA KHETRAPAL JUDGE

PRATIBHA RANI JUDGE July 12, 2013 km