The Madras High Court dismissed a writ petition challenging the cancellation of a Section 8 license by the Ministry of Corporate Affairs. The Court held that the petitioner was afforded a hearing and found the order sustainable given the company's history of litigation and alleged abuse of process.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON PRONOUNCED ON 06.12.2021 04.01.2022
CORAM
THE HONOURABLE MR.JUSTICE M.DHANDAPANI
W.P.NO.10235 OF 2019 AND W.M.P.NOS.10800 OF 2019 W.M.P.NOS.23294 & 24212 OF 2021
India Awake For Transparency Shrishti Crescendo 24, Desika Road Unit I Mezzanine Floor, Mylapore Chennai 600 004.
...Petitioner
-Vs-
1.The Secretary Ministry of Corporate Affairs Union of India, New Delhi.
Trading Company Pvt. Ltd No.134, Next to WIPRO Corporate Office Doddakannelli, Sarajapur Road Bengalure 560 035.
Office of the Regional Director Ministry of Corporate Affairs Government of India Shastri Bhavan Block I, V Floor 26, Haddows Road, Chennai 600 006. ...Respondents
Writ Petition filed under Article 226 of the Constitution of India praying this Court to issue a writ of certiorari calling for the records of order F. No.3/RD/India Awake/Sec 8 (6)/201819 dated 17.08.2018 of the 2nd respondent and quash the same.
For Petitioner : Mr.R.Subramanian For Respondent : Mr. S.S.Pajani Radja, CGSC for RR-1 & 2 Mr.A.Ganesh, SC, for Mr. K.Ravi for R-3 Dr.R.Prakash for Mr.A.Mohan for R-4
ORDER
The present petition at the instance of the petitioner assails the impugned order passed by the 2 nd respondent in and by which the license issued to the petitioner was revoked/cancelled by the 2 nd respondent by virtue of powers provided u/s 8 (6) of the Companies Act.
2. The case of the petitioner, as could be culled out from the affidavit filed in support of the petition is that the petitioner was formed on 6.8.2012 as a not for profit company for charitable purposes as contained u/s 25 of the Companies Act, 1956, presently Section 8 of the Companies Act, 2013. It is the case of the petitioner that it is barred from paying any dividend and that the company is operating mainly for public interest and in satisfaction of its purpose, the petitioner has been diligently working through its volunteers and escalating matters of significant public interest, more especially violations relating to Coastal Regulation Zone Regulation and Development Control Regulation of Chennai Metropolitan Development Agency in the Acquifer Recharge Zone. In this regard, the petitioner had filed six public interest litigations before the Delhi High Court, of which petitions are pending adjudication.
3. It is the further case of the petitioner that having come to its knowledge relating to a large scale fraud involving defalcation of about Rs.50,000 Crores by the 3 rd respondent by way of income tax evasion, the petitioner has been pursuing the said issue for retrieving the said amount. It is the averment of the petitioner that the said defalcation had arisen in view of the merger approval obtained by the 3 rd respondent from the High Court of Karnataka, on the basis of misrepresentation and collusion with the 4 th respondent, then functioning as Registrar of Companies, Karnataka. It is the further averment of the petitioner that unable to bear the pressure mounted on the 3 rd respondent by the petitioner, the 3 rd respondent, with a view to prevent the petitioner from proceeding any further with its endeavour to unearth fraudulent acts, with the connivance of the 4th respondent, who is functioning as the 2 nd respondent, sought to cancel the permission granted to the petitioner u/s 8 of the Companies Act.
4. It is the further case of the petitioner that though the 3rd respondent had prepared all the necessary material to achieve its objective as far back as on 13.11.2017, however, refrained from moving the petition till 2.7.2018, when the 4 th respondent took charge of the office of the 2 nd respondent and with the help of the 4 th respondent occupying the post of the 2 nd respondent, in stark violations of principles of natural justice and without affording a reasonable opportunity of hearing and without in any manner adverting to the petitioner's application in the Karnataka High Court relating to the merger issue of the 3 rd respondent, passed the impugned order. It is the further averment of the petitioner that the impugned order has been passed without any material whatsoever supporting the said stand of the 3 rd respondent and the allegations made by the 3 rd respondent does not come within the scope of Section 8 (6) of the Companies Act and the act of the 3 rd respondent is a sheer abuse of process of law and that the impugned order is neither in consonance with law nor in consonance with the principle of audi alteram partem and, therefore, the said order deserves to be set aside.
5. Learned counsel appearing for the petitioner, adverting to the sequence of events, submitted that the act of the petitioner in adhering to its mandate on its formation as a company u/s 8 of the Companies Act and unearthing the fraud sought to be perpetrated by the 3 rd respondent under the guise of merger of companies, which got the approval of the Karnataka High Court in the year 2014-2015, moved the petition before the Karnataka High Court by way of a third party public interest litigation in which notice has been ordered in the year 2016 and, thereafter, the order of NCLT, Bengaluru in ordering notice to the 3 rd respondent in C.P. No.16/2017 had earned the wrath of the 3 rd respondent against the petitioner, which necessitated the 3rd respondent to move the 2 nd respondent, which post was occupied by the 4 th respondent. It is the further submission of the learned counsel for the petitioner that the petition was filed on 4.7.2018 on which hearing was conducted by the 2 nd respondent on 10.8.2018 in exclusion of the petitioner and inspite of the petitioner seeking opportunity to present its case, however, the 2nd respondent allowed the petition filed by the 3 rd respondent, thereby, revoking/cancelling the registration granted to the petitioner by invocation of power u/s 8 (6) of the Companies Act. It is the further submission of the learned counsel for the petitioner that inspite of representation to the 1 st respondent as to the void nature of the impugned order, no order has been passed on the same and in March, 2019, the status of the petitioner company as a company formed u/s 8 stood changed to that of a Private Limited Company.
6. Learned counsel appearing for the petitioner heavily relies upon Section 8 of the Act, more especially sub-section (6) to Section 8 and submits that without fulfilment of the requirement stated in sub-section (6), the status of the company and the licence granted to a company cannot be cancelled/revoked.
7. It is the further submission of the learned counsel for the petitioner that even in the event of the 2 nd respondent intending to revoke the licence granted to the petitioner, legal necessity warrants providing of an opportunity of being heard before any adverse order is passed. However, it is the stand of the petitioner that no opportunity of hearing was granted to the petitioner before the impugned order came to be passed, which is in violation of principles of natural justice.
8. It is the further submission of the learned counsel for the petitioner that materials, which were relied upon by the 2 nd respondent to render a finding, such of those materials were not provided to the petitioner, which prevented the petitioner from defending itself effectively and such lacunae strikes at the root of the impugned order.
9. It is the further submission of the learned counsel for the petitioner that the finding rendered by the 2 nd respondent that the Board Resolution authorising the petitioner was invalid, as the Board of Directors of the petitioner was reconstituted after that date, is wholly erroneous as the impugned order itself reveals that two persons were on the Board as Directors as on 14.3.2015 and, therefore, the Board resolution authorising the petitioner is wholly permissible and sustainable. Accordingly, for the aforesaid infractions of the legal necessities, the learned counsel for the petitioner prays for setting aside the impugned order.
10. Per contra, learned standing counsel appearing for respondents 1 and 2 submitted that the contention of the petitioner that initially the petition was filed at Hyderabad, where the 4 th respondent was functioning as Regional Director and, thereafter, it was transferred to the file of the Regional Director (Southern Region) at Chennai, only due to the fact that the 4 th respondent, who is in collusion with the 3 rd respondent, had taken charge as Regional Director of the Southern Region. It is the submission of the learned standing counsel for the respondents 1 and 2 that since the office of the 3 rd respondent was at Bangalore, the computerized system would accept only a filing at the South Eastern Region, inspite of the fact that the petitioner has office in Chennai and the petition ought to have been filed at Chennai. The filing at South Eastern Region was, on account of jurisdictional aspect, transferred to the file of Southern Region and, therefore, the contention of the petitioner
that the said filing only on account of the collusion between the 3 rd and 4 th respondent is wholly without any substance.
11. Insofar as the contention relating to non-compliance of principles of natural justice, learned standing counsel for respondents 1 and 2 submitted that notice was caused to the petitioner as well as the 3 rd respondent and on the request of the counsel for the petitioner herein, adjournment was initially granted to 10.8.2018 and on that date, there was representation for both the petitioner herein and the 3 rd respondent. However, the vakkalat filed by the advocate for the petitioner herein on the strength of the Board Resolution dated 1.6.2015 could not be accepted for the reason that the Board had since stood reconstituted and there was no fresh resolution from the Board, which fact, though brought to the notice of the petitioner herein, however, the counsel for the petitioner was neither aware of the reconstitution of the Board nor aware of the facts of the case and only sought further adjournment. The 3 rd respondent was heard and the matter stood reserved for orders. However, in the absence of any material placed by the petitioner through his counsel on the basis of a fresh Board resolution, the impugned order was passed. Therefore, the contention of the petitioner that no opportunity of personal hearing was granted is purely fictional and only to defeat the impugned order.
12. Learned standing counsel for respondents 1 and 2 also submitted that though the Board resolution pertains to 1.6.2015, the counter has been filed by a consultant of the respondent, who had been authorised vide the aforesaid Board resolution and the counter has been filed in April, 2019. However, by that time, the Board had undergone reconstitution and it is not clear whether the Board Resolution of 1.6.2015 was permitted to be continued by the newly reconstituted Board. It is the further submission of the learned standing counsel for respondents 1 and 2 that in the absence of any particulars as to the continuance of the Board Resolution, the filing of the petition by the petitioner, as consultant, is not in consonance with Section 21 and 21 (51) of the Companies Act, 2013, as consultant and volunteer is not competent to file writ petition.
13. Learned senior counsel appearing for the 3 rd respondent, while reiterated similar submissions advanced by the learned standing counsel appearing for respondents 1 and 2, further submitted that application of principles of natural justice should not be in a straight-jacket manner and will have to be applied on the basis of the facts and circumstances of each case.
14. It is the further submission of the learned senior counsel for the 3 rd respondent that the findings rendered by the
Division Bench of Karnata High Court in O.S.A. No.1 of 2021 and W.A. No.307/2021 clearly reveals that the petitioner herein is only engaged in filing multiplicity of legal proceedings by raising substantially the same contentions without following the mandatory requirements of the provisions of the Companies Act and the act of the petitioner constitutes criminal contempt. Further, criminal contempt action has also been initiated against the petitioner, which is not disputed and the Supreme Court has also given certain directions for immediate disposal of the proceedings by the High Court. In view of the serious admitted violations of Section 8 of the Companies Act, the 2 nd respondent, invoking power available u/s 8 (6) of the Companies Act, 2013, has rightly cancelled the licence granted to the petitioner and, therefore, no interference is called for with the said order.
15. Learned counsel appearing for the 4 th respondent, while reiterating the submissions as advanced by the learned standing counsel for respondents 1 and 2, further submitted that opportunity was given to the petitioner to put forth his case, and in the absence of proper authorisation, as required to canvass the plea and inspite of grant of sufficient time, the petitioner having not come forward to put forth his plea properly and also submit the necessary document showing that he has been authorised to represent the petitioner, the contention of the petitioner that there is violation of principles of natural justice is wholly unsustainable.
16. It is the further submission of the learned counsel for the 4 th respondent that the 4 th respondent, holding the post of 2 nd respondent, being a quasi-judicial authority and administrative head of the Southern Region, has access to all the documents connected with the company, which were relied on while passing the impugned order and reliance being placed on documents, which are in the public domain cannot be said to be documents, which have not been shared with the petitioner and also cannot be branded as if the 4 th respondent has relied on certain documents, which have not been shared with the petitioner. When reliance has been placed on certain documents which are in the public domain, there is no necessity for the 4 th respondent to share the same with the petitioner.
17. It is the further submission of the learned counsel for the 4 th respondent that in the preliminary counter regarding hearing of the complaint by the 4 th respondent, no objection has been raised by the petitioner and that being the case, the petitioner cannot, at the fartherest point of time come before this Court and allege that the 4 th respondent, in collusion with the 3 rd respondent, had cancelled the licence of the petitioner.
18. Further contentions have also been raised by the 4 th respondent on the ground of delay and laches in filing the writ petition and also the maintainability of the writ petition as the order impugned having cancelled the licence, the said order still subsisting, filing of the petition without adding the words “Private Limited” would make the petition not maintainable, as the petitioner company has lost the status of Section 8 company. The 4 th respondent has also, in its submission, drawn the attention of this Court to the very many orders passed by the Karnataka High Court and the Delhi High Court against the petitioner and also the orders of the Hon'ble Supreme Court and submitted that the present petition is wholly devoid of merits and is liable to be dismissed.
19. This Court paid its undivided attention to the submissions advanced by the learned counsel appearing for the respective parties and also perused the materials to which this Court's attention was drawn and the various orders passed by the Delhi High Court, the Karnataka High Court and also the Hon'ble Supreme Court.
20. The issue that is the subject of lis before this Court revolves around the issue of compliance of principles of natural justice before passing the impugned order and the sustainability of the impugned order.
21. To address the above issue, it is but necessary to advert to the impugned order. Notice not having been issued to the petitioner is said to be the major flaw in the whole process, which renders the process liable for quashment. In this regard, a perusal of the impugned order reveals that notice has been issued to the petitioner herein, who was respondent before the Regional Director (Southern Region) and better appreciation, the relevant portion of the said order is extracted hereunder :-
“3. That a copy of application along with annexure was forwarded by Speed Post to the respondent company and its Directors on 04.07.2018 with a request to offer their comments within 7 days. While the letter addressed to Adisesshen Srimathi, Director has been returned undelivered with remarks “Left”, Mr.Prakash Goklaney, Advocate representing Goklaneys & Goklaney vide letter dated 16.07.2018 has informed that the respondent company and its Directors are his clients and they have placed the matter in his hands and instructed him to seek 6 weeks time from 11.07.2018 being date of receipt of the letter to file their reply.
4. That in order to give natural justice to the respondents, the request of the counsel for the respondents were considered and therefore time for filing objection was granted upto 10.08.2018 with a direction to the respondents to endorse a copy of their objection to the petitioner without fail and further requested to note that there will not be any further extension of time.
5. As the veracity of the allegations levelled by the petitioner is considered to be serious in nature, the matter required urgent disposal. Accordingly, an opportunity of being heard was extended to the respondent company, its Directors, counsel for the respondents as well as to the petitioner, in terms of Section 8 (6) of the Companies Act, 2013, and they were called for a personal hearing on 10.08.2018 at 11 am.
6. At the hearing held on 10.08.2018, one Mr.S.Sivalinga Kesavan, Advocate on behalf of the respondent and Mr.Saji P.John, advocate on behalf of the petitioner caused appearance before the undersigned. The representative of the respondents filed a letter dated 09.08.2018 enclosing therewith an original vakalat dated 09.08.2018, a copy of board resolution dated 01.06.2015 and preliminary counter affidavit of the respondent. It was pointed out to the respondent's counsel that there was a change in the constitution of the Board and that the present Board of Directors of the company have not given any authorization. It is noticed that the preliminary counter of the respondent has been filed by a volunteer and consultant of respondent company on the strength of a board resolution dated 1.6.2015. the advocate for the respondent was unable to make any representation and he was even not aware of the constitution of the present board of directors or the activities and objects of the company. But prayed for adjournment to enable his senior to make submissions on a later date. In the absence of proper authorization and in the light of the fact that he was not even aware of the background of the case and his presence was not taken cognizance of. On the other hand the counsel for the applicant reiterated the submissions and sought revocation of licence granted to the respondent on the grounds cited in the petition.”
22. From the above, it is clearly evident that not only notice was served on the petitioner, but even at the request of the petitioner, time was granted by six weeks to the petitioner to make his representation. Further, during the hearing on 10.08.2018, the petitioner and the 3 rd respondent were represented by their respective counsel. However, the documents pertaining to the authorization granted to the representative of the respondent therein to plead the cause of the respondent therein/petitioner herein was well short of the requirement. Though the aforesaid findings have been recorded in the impugned, but for the attempt by the petitioner to plead that no opportunity of hearing was offered, which is in violation of principles of natural justice, there is no whisper from the petitioner about the opportunity granted to the petitioner to plead his case. When the requisite documents have not been filed to establish that the volunteer/consultant is authorized to plead on behalf of the petitioner, inspite of time having been granted by six weeks to the petitioner herein to file their reply, the stand of the petitioner that no opportunity has been given to the petitioner is totally devoid of merits and does not merit acceptance.
23. Now coming to the impugned order cancelling the licence granted to the petitioner, it is the contention of the petitioner that the same is not in consonance with Section 8 of the Companies Act, 2013 and that the materials relied on by the 2nd respondent were not placed by the 3 rd respondent and they were also not provided to the petitioner, which renders the impugned order unsustainable.
24. In this regard, a perusal of the impugned order reveals that the shell companies that were forming part of the cartel were dealt with in detail in the anticipatory bail petition filed by one of the Directors of the concern and taking note of the shell companies, this Court had detailed the said companies which were functioning and the holding pattern in the said companies, while dealing with Crl. O.P. No.21449/2015.
25. Thereafter series of litigations were filed by the petitioner in the Karnataka High Court against the 3 rd respondent claiming defalcation of accounts and after detailed hearing, learned single Judge of the Karnataka High Court dismissed the said petition in W.P. No.172/2021 (GM-Res) holding that the petition at the instance of the petitioner is a sheer abuse of process of law and also imposed cost.
26. The petitioner herein, thereafter filed appeal in O.S.A. No.1/2021 before the Division Bench of the Karnataka High Court assailing the correctness of the order passed in Company Application No.185/2016 and the Division Bench, while dismissing
the said appeal, observed that the petitioner is indulging in speculative litigation not only by filing this appeal, but repeatedly over the years has been filing litigation before one Court or the other for the same cause of action. Further, the Division Bench has also refrained the petitioner herein from proceeding with filing any proceeding with regard to the amalgamation of three companies before any Court or authority or forum in view of the loss of precious court time under the guise of public interest, which is nothing but an instance of gross abuse of process of law. The Special Leave Petition in SLP (Crl.) Diary No.12031/2020 filed against the said order stood withdrawn by the petitioner.
27. It is further borne out by record, which is also not in dispute that action for criminal contempt has been initiated, suo motu, against the petitioner by the Karnataka High Court, which is yet to see the light of the day and stepping into stopping the adjournment spree, the Hon'ble Supreme Court in Criminal Appeal No.1177 to 1179/2021 (Azim Hasham Premji & Anr. - Vs – India Awake for Transparency & Ors. - Dated 02.12.2021), has deprecated the act of the petitioner in trying to obfuscate the proceedings before the Karnataka High Court by seeking adjournment one way or the other and had framed a time schedule within which the proceedings are to complete.
28. The above facts are narrated to highlight the fact about the modus of the petitioner in initiating litigative process, which are sheer abuse of process of law. In this regard, all the litigations have been raised against the 3 rd respondent herein before the Karnataka High Court, which is an admitted fact. Merely because notice has been issued in one of the matters by the Karnataka High Court would not be a bar for this Court to consider the sustainability of the impugned order passed by the 2 nd respondent as there are many orders, which stare on the face of the petitioner.
29. In the backdrop of the above facts, a careful perusal of the order passed by the 2 nd respondent reveals that the 2 nd respondent has taken into consideration all the materials, including information collected by the SFIO, the Enforcement Directorate, Banks, Income Tax Department, Statutory Auditors, CBI, Commissioner of Service Tax, Regional Provident Fund Commissioner and having analysed the said documents, has come to an irrefutable conclusion that the that the motive behind the formation of the respondent was not fulfilled even after six years of incorporation and its objects are not achieved till date. Moreover, the regulatory compliances by the respondent company as well as its owner companies were not fulfilled and the companies were not regular in filing their financial statements and statutory annual returns and that the petitioner
is only using its privileged position as a Section 8 company by involving itself in litigations with private limited companies with no public interest nor serving any public cause.
30. The 2 nd respondent is the Regional Director (Southern Region), Ministry of Corporate Affairs, and, therefore, would be in possession of all the materials relating to the petitioner. When a petition is filed against the petitioner questioning the licence granted u/s 8 of the Companies Act, not only the materials, which are placed by the person, who has filed the petition, be looked into, but all materials in relation to the company could be looked into before arriving at a subjective satisfaction under sub-section (6) to Section 8 of the Companies Act, 2013.
31. For better appreciation, Section 8 (6) of the Companies
Act, 2013, is quoted hereunder :-
“ 8. Formulation of companies with charitable objects, etc.—
* * * * * * * (6) The Central Government may, by order, revoke the licence granted to a company registered under this section if the company contravenes any of the requirements of this section or any of the conditions subject to which a licence is issued or the affairs of the company are conducted fraudulently or in a manner violative of the objects of the company or prejudicial to public interest, and without prejudice to any other action against the company under this Act, direct the company to convert its status and change its name to add the word - “Limited” or the words - “Private Limited” as the case may be, to its name and thereupon the Registrar shall, without prejudice to any action that may be taken under subsection (7), on application, in the prescribed form, register the company accordingly:
Provided that no such order shall be made
unless the company is given a reasonable opportunity of being heard:
Provided further that a copy of every such order shall be given to the Registrar.”
32. From the above provision of law, it is manifestly clear that the Central Government can revoke the licence of a company if it contravenes any of the requirements of this sub-section (6) of Section 8 or any of the conditions subject to which a licence is issued or the affairs of the company are conducted fraudulently or in a manner violative of the objects of the
company or prejudicial to public interest, and without prejudice to any other action against the company under this Act.
33. Therefore, power is invested with the Central Government to cancel the licence if the affairs of the company registered u/s 8 are in any manner violative of the objects of the company or prejudicial to public interest. In this backdrop, the 2 nd respondent, being the Regional Director (Southern Region), Ministry of Corporate Affairs, Government of India, would be oblivious of the happenings around the company and would be very much in the thick of things as to the manner in which the company is conducted and the company and its actions having been ridiculed by the Karnataka High Court and very many litigations have been taken against the Directors of the company relating to siphoning off of the funds of the companies, which are under the scanner of SFIO, which investigation is initiated by the Central Government u/s 212 of the Companies Act, the 2 nd respondent, being the competent authority u/s 8 (6) of the Companies Act, 2013, is definitely competent and would be very well aware of the happenings around the company and its Directors and, therefore, materials, which are against the petitioner, which are within the ambit of the 2 nd respondent and in the light of the various orders passed by the High Court and the Hon'ble Supreme Court relating to the affairs of the company, the 2 nd respondent, applying his judicious mind, being a quash judicial authority, has thought it fit to cancel the licence granted to the petitioner and merely because mala fide in the nature of collusion is attributed between the 3 rd and 4th respondent in the functioning of the office of the 2 nd respondent by the petitioner, in the absence of any material in support of the said collusion, mere allegation cannot partake the character of proof to hold that the impugned order has been passed against the petitioner only to satisfy the 3 rd respondent and to safeguard the 3 rd respondent from the litigations initiated by the petitioner.
34. For the reasons aforesaid, this Court is of the considered view that no interference is warranted with the well considered order passed by the 2 nd respondent and the impugned order, in no manner, suffers from the vice of any illegality and, accordingly, the impugned order deserves to be sustained. Accordingly, this writ petition is dismissed. Consequently, connected miscellaneous petitions are also dismissed. However, in the circumstances of the case, there shall be no order as to costs.
Sd/- Deputy Registrar (CS) // True Copy // Sub Assistant Registrar
GLN
To
1.The Secretary Ministry of Corporate Affairs Union of India, New Delhi.
2.The Regional Director (Southern Region) Ministry of Corporate Affairs Government of India Shastri Bhavan Block I V Floor 26, Haddows Road, Chennai 600 006.
+1cc to M/s.D.Murugan, Advocate SR.No.503
+2ccs to M/s.A.Mohan, Advocate SR.No.380
+2ccs to M/s.K.Ravi, Advocate SR.No.187
W.P.NO.10235 OF 2019
KSM(CO) RVM(25/01/2022)
2 issues framed by the court
Whether the principles of natural justice were violated in the revocation of the Section 8 license without affording a reasonable opportunity of hearing to the petitioner.
Whether the impugned order cancelling the license is sustainable in light of the petitioners conduct of filing multiplicity of litigations and alleged abuse of process of law.
Colour shows how this judgement treated each authority
1 provisions across 1 enactments
India Awake For Transparency Shrishti Crescendo
The Secretary Ministry of Corporate Affairs Union of India
M/s.Hasham Investment & Trading Company Pvt. Ltd
M.DHANDAPANI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
