IN THE HIGH COURT OF JUDICATURE AT MADRAS
T.S. SIVAGNANAM, J.
Cascade Energy Pte Ltd., Rep., by its Authorised Signatory, Rajiv Pradhan - Petitioner
Versus
Union of India, Ministry of Finance, Rep., by its Secretary, Dr. Hasmukh Adhia & Others - Respondents
Writ Petition Nos. 14626 to 14628 of 2017 & W.M.P. Nos. 15862 to 15864 of 2017, 19504 to 19509, 23213 of 2017
Decided On : 25-01-2018
Property Transactions Act, 1988 - Section 24(1), 24(3) - Amendment Act - Section 2(21), 18(1) - Income Tax Act, 1961 - Section 24, 116 - Information Technology Act, 2000 - Section 8 - Prohibition of Benami Property Transactions Act, 1988 - Section 59 - Tax assessment - Suit decree - Petitioner is restricted/prohibited from dealing in any manner and from exercising any rights in relation to the shares and debentures - Any property as being held referred to in that sub-section, a copy of the notice shall also be issued to the beneficial owner, which provision has not been followed and copy of the notice has not been forwarded - Held, learned Additional Solicitor as well as the learned Senior counsels appearing for the private respondents sought to invoke the doctrine - It has to be seen as to whether such doctrine could be invoked, when the Court has come to the conclusion that the second respondent lacked inherent jurisdiction on the day when the impugned notification/orders were passed - Possession of the office and the performance of the duties attached thereto - Colour of title, i.e., apparent right to the office and acquiescence in the possession thereof by public - Light of the decision taken on the above question, it is not necessary for this Court to go into the other aspects, as the very foundation based on which the second respondent exercised jurisdiction has collapsed and the proceedings are held to be void - Thus, the other questions raised by the learned counsels on either side are left open including the allegations against the second respondent - petition allowed.
1. These Writ Petitions question the orders passed under the Prohibition of Benami Property Transactions Act, 1988, as amended by Act No.43 of 2016, w.e.f. 01.11.2016 (hereinafter referred to as the “Act” for brevity).
2(i). The petitioner, in all these Writ Petitions, is M/s. Cascade Energy Pte Ltd., having its registered office at Singapore.
2(ii) In W.P.No.14626 of 2017, the petitioner seeks for issuance of Writ of Prohibition, restraining the official respondents from in any manner proceeding with the show cause notice, dated 19.05.2017, issued by the second respondent under Section 24(1) of the Act, calling upon the petitioner to show cause as to why 51% shares and debentures held by the petitioner in an Indian company Zynergy Solar Projects Pvt., Ltd (Zynergy India).
2(iii). In W.P.No.14627 of 2017, the petitioner seeks for issuance of a Writ of Certiorari, to quash the order dated 19.05.2017, issued under Section 24(3) of the Act, intimating the petitioner that pursuant to the provisional attachment of shares and debentures, enforced, the petitioner is restricted/prohibited from dealing in any manner and from exercising any rights in relation to the shares and debentures.
2(iv). In W.P.No.14628 of 2017, the petitioner seeks for issuance of a Writ of Certiorari, to quash the order of provisional attachment, dated 19.05.2017, issued by the second respondent to the 6th respondent under Section 24(3) of the Act.
3. The brief factual background leading to the present litigation is as follows:-
The petitioner had invested in an Indian company Zynergy India, a company promoted by Mr. Rohit Rabindernath (Mr. RR) by way of shares and debentures. The petitioner holds 51% of the share capital of Zynergy India; 5, 43, 470 fully compulsorily and mandatorily convertible debentures of face value Rs.100/- each, issued by Zynergy India and 20,00,000/- optionally fully convertible debentures of face value Rs.100/- each, issued by Zynergy India. The petitioner would state that none of the transactions are benami transactions and the petitioner is not a benamidar and the shares and debentures are not benami property. The transactions done by the petitioner, were completed well before the amendment to the Prohibition of Benami Transaction Act, 1988, which amendment received the assent of the President of India on 11.08.2016 and the Act came into force w.e.f 01.11.2016. It is further submitted that there has been several litigation between the petitioner and Mr. RR and various entities controlled by him including the other shareholders of Zynergy Inidia by name M/s. Archer Power Systems Limited (hereinafter referred to as “Archer” for brevity). It is alleged that after receiving substantial investment from the petitioner, Mr. RR is alleged to have siphoned money out of Zynergy India, refused to make necessary disclosures and comply with the mandatory filings required under the Companies Act, 2013 and when the petitioner sought for transparency of the transactions, Mr. RR and various companies controlled by him initiated litigation against the petitioner with a view to prevent them from examining the affairs of Zynergy India. M/s. Archer represented by Mr. RR filed C.P.No.13 of 2017, before the National Company Law Tribunal (NCLT) to restrain the petitioner from exercising its rights in relation to the shares and debentures and also approached this Court in O.A.No.347 of 2017, in which this Court initially granted an exparte interim injunction on 07.04.2017, which was vacated after the petitioner entered appearance and contested the matter, by order dated 01.06.2017 and O.A.No.347 of 2017, was dismissed. It is submitted that when O.A.No.347 of 2017, was listed on 01.06.2017, for passing orders, the impugned attachment order and the impugned prohibitory order issued to the second respondent was produced before the Court and an argument
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