Bombay High Court: A.K. Menon, J. sitting as Judge of the Special Court dismissed execution petitions filed by the Custodian appointed under the Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992.
One Aishwarya Traders (P) Ltd. took a loan of Rs 85,18,676 from Fairgrowth Financial Services Ltd. in 1992 for a period of six months. The repayment of the same was defaulted. Consequently, a miscellaneous petition was filed by the Custodian on behalf of Fairgrowth Financials seeking payment of loan amount along with interest. J. Chandran, counsel for the Custodian submitted that by an order and decree dated 25-7-2013, the Court had directed Aishwarya Traders to pay Rs 34,85,000 with interest. However, it failed to comply with the decree. Subsequently, execution petitions were pursued and on 5-8-2005 Aishwarya Traders was directed to disclose details of its Directors at the relevant time along with their addresses. It was contended by Mr Chandran that the Directors concerned were holding post of Directors in other companies as well. Suspicion was raised on few transactions of loans believed to have taken place between the companies including Mid East Engg. Co. (Bombay) Ltd. and ICD Kaushalya Marketing (P) Ltd.. According to him, disclosure of Director’s details was required to facilitate ‘lifting of corporate veil’ of the companies.
The execution petitions were opposed by the respondents represented by Sagar Ghogare and Ajay Panicker on various grounds. Regarding ‘lifting of corporate veil’, it was contended that allegations made by the Custodian did not reveal any nexus so as to justify lifting of the veil. Reliance was placed on several authorities including Saloman v. Saloman and Co. Ltd., [1897] AC 22 and Balwinder Rai Saluja v. Air India, (2014) 9 SCC 407.
The Court noted that in the course of further proceedings, respondents appeared before the Court and contended that there was no creditor-debtor relationship between them and Aishwarya Traders. But the Court was not satisfied with their defence and therefore they were directed to disclose necessary information to ascertain that the companies in question were defunct companies and not ‘front companies’. It was also noted that the Custodian averred that respondents were suppressing information and therefore corporate veil had to be lifted. However, the Court observed, “it does appear that the respondents initially did attempt to avoid disclosure of the correct addresses but wiser counsel may have prevailed. Skirting such disclosure alone cannot be held to be justification for lifting the veil”. Furthermore, the Court was of the view that the claim against Mid East Engg. and Kaushalya Marketing was barred by law of limitation. [Custodian v. Mid East Engg. Co. (Bombay) Ltd., 2019 SCC OnLine Bom 156, dated 18-1-2019]
