1. The petitioners filed this CA 332/2011 against the answering respondents assailing R1 making huge donations to a Trust namely Madhav Prasad Priyamvada Birla Apex Charitable Trust (hereinafter referred as Apex Trust-R38) exclusively run by Harsh Vardhan Lodha (HVL-R2) and his wife Anamika Lodha (R39) along with some other persons close to Lodhas, particularly when this trust was not undertaking any charitable activity and these donations were in turn invested by this Trust through a subsidiary of Lodha Capital Markets Limited (R41) viz. PLC Securities Ltd, an entity under the control of Lodhas, who in turn received brokerage/commission for this from the fund houses. The petitioners submit that the diversion of the funds of the company to this Trust in the form of donations tantamount to siphoning, therefore, sought for restraining R1 Company from making donations any further and also to restore the funds already diverted to the Trust to R1 Company.
2. Before going into the dispute in this CA, I believe I need to give back story of filing this Application. It is a case of Birla Corporate House, which the people of India are seldom unaware of it. This corporate house has grown over a period of time into four branches, one branch in those four, is MP Birla Group, whose company (R1) is presently in this litigation. As the promoter of this group Shri M. P. Birla passed away 15 to 20 years ago, his wife Smt. Priyamvada Devi BIral (PDB) had become the chairman controlling over MP Birla Group until she passed away on 03.06.2004. Interesting part, in between is, unfortunately they had no children to inherit this big corporate empire, so by virtue of a will, one Mr. Rajendra Singh Lodha (RSL), since deceased, according to him, had become chairman and took over the control of R1 company belonging to MP Birla Group, of course, the bequeath purportedly made by these Birla’s has remained in litigation since long. Since that litigation is not connected to the present case, I am not on it. But I have to make one thing clear that Lodhas are allowed to continue to hold control over this business, therefore, they have been, ever since controlling this company. Now, the control of the company has come to RSL’s son, Harsh Vardhan Lodha i.e., R2.
3. It goes without saying, Birlas are known for extending their big hand in setting up temples, educational institutions and hospitals to reach out their helping hand to public. Likewise, here also, Smt. Birla (PDB) during her life time, set up Apex Trust on 01.12.2001 with an original corpus of Rs. 5,001/-. Smt. Birla, RSL and one Dr. V. Gauri Shankar were first trustees of Apex trust.
Today none of them are there. By all these quick successive events, R2 being son of RSL, became chairman of R1 company in the year 2004 and also a trustee of Apex Trust. Thereafter, his wife Anamika Lodha has become another trustee, by which, Lodhas have become controlling authority in R1 Company and the apex Trust as well.
4. While Birla Corporation Ltd. (R1) has been quietly witnessing all these historical changes happening to it, in March, 2010, one Birla Education Trust and some others, claimed to be having more than 10% holding in R1 company filed this CP against the answering respondents, alleging that R2 and others are indulged in mismanagement of the affairs of R1 company by diverting the funds of R1 company for their gain, which is prejudicial to the interest of the Company. In furtherance of it, the petitioners moved this CA in the year, 2011 stating that the annual accounts of R1 company for the year ended 31.03.2011, discloses that substantial donations have been given to Apex Trust, though the trust was not carrying any charitable activity at the relevant time, and it was stacking this donated money in mutual funds as a vehicle to dishonestly and illegally divert funds from the company. Because of this reason, the petitioners counsel stated that they sought for orders restraining R1 Company from making further donations to Apex Trust. On hearing the submissions, Principal Bench New Delhi had disposed of this CA directing the company to produce three certified copies of each documents/detail in a sealed cover to the Bench Officer of CLB, forwarding one copy each to R1 as well as Earnest & Young, for giving their comments within four weeks and also directing Apex Trust to furnish their justification over this issue with supporting documents. When it was appealed to Hon’ble High Court of Calcutta, a direction has come to CLB to rehear this CA and another CA and pass orders accordingly. It is how this CA has again come up for hearing before this Bench.
5. R1 says this CA is not maintainable because similar reliefs were already sought in the main petition. It says that affidavit in this CA was filed by one Bijay Kumar Dalan, an attorney on the petitioners behalf, not by the parties themselves. There being settled proposition that an attorney cannot affirm the facts not in his knowledge, this Dalan could not have put up this CA without verification of the facts, and therefore this CA has to be dismissed in limine.
6. R1 says that the contention of the petitioners saying Rs. 27.50 crores has been given to the Trust without justification has no relevance now, because a colossal structure has already come into existence proving the construction of Hospital is in progress. The donations were made within the permissible limits of section 293 (1) (e) of the Companies Act 1956.
7. R1 says that Nandini Nopany, daughter of KK Biral, was present at various board meetings held on 31.07.2007, 28.07.2009, where in, it was decided to making donations to the Trust. In fact, the petitioners are all companies controlled by family members of late KK Birla, sisters and nephews of Nandini Nopany. R1 further says that PLC Securities, since 2001, has been associated with R1 that is during the life time of Smt. Birla.
8. R1 says that not even a single instance has been given by the petitioners saying that donations going to the Apex Trust have been misspent or misused. This is not a proceeding under section 92 of CPC; therefore the activities of the Trust are not open to scrutiny under the provisions of the Companies Act.
9. R1 says that Companies Act provides that it can make donations to charitable Trusts up to 5% of its average net profit. During last three years, the donations made to the trust by the company are well below 5% of its profits, therefore, it cannot be attributed that the company has done something that is not permitted under law. R1 says that the company initially donated towards corpus on the request made by the Trust, which is beneficial to the company on account of Tax Benefit as well as to the Charitable Trust. Donations made towards corpus of a charitable Trust are exempt from Income Tax Act under section 11(1)(d) of Income Tax Act 1961. R1 says if the Hospital is set up solely for the benefit of the employees of the company, it ceases to be charity. It also says that the Memorandum (MOA) of the Company does not permit it to carry Hospital business, thereby; the company, on its own does not run any Hospital. Moreover, depreciation is available only when the assets have been used in the course of business activity of the company. If it becomes the business activity of the company, donations cannot be made for there cannot be any exemption under section 80G of Income Tax Act. Under the Income Tax Act, charitable trusts are allowed to keep money with mutual funds and income generated there from, as also received by way of corpus, is tax free. It says that the affidavit filed by the Trust says that PLC Securities has not charged any commission or brokerage from the Trust for the services rendered to the Trust. The company says donation towards corpus is a tax efficient mode of charitable activity to both, by this, the donor and the donee have benefited. R1 further says all Birla Groups have their own charitable Trusts/Societies. R1 says that donations to charitable Trusts are covered even under schedule given to the new Companies Act. As to the contention of the petitioners that the company will not get any benefit by setting up Hospital at far off place to the company, because the Trust has not even made any disclosure that employees of the Company gets free treatment. To which, R1 says that the Trust provides 20% discount on investigations and room charges from the employees of R1 Company.
10. As to asset acquired at Shakespeare Sarani, Kolkata, the petitioners cannot ask this Bench how the affairs of the charitable Trust are being conducted without the consent of all concerned.
11. With these submissions, R1 Company submits that this CA 332/2011 is motivated without any concrete allegations against the Respondents; therefore the same shall be dismissed.
12. The Trust (R38) has come out with an argument that the petitioners have no interest in or connection with the Trust; therefore the petitioners have no right to maintain any action concerning the affairs of the Trust. It also says CLB has no jurisdiction over the affairs of the Trust (relied upon Anil Kumar Agarwal & Ors. v. Sunil Kumar Agarwal & Ors 125 CC 168 para 21) As to merits, Trust submitted in detail how late Smt. Birla groomed R2 so as to run MP Birla group and this Trust, of course, that point, I don’t believe any relevance for adjudicating whether started out the company donating to this Trust even before setting up Hospital was in contemplation of the Board of R1 Company or not. The Trust says it has been set up with an object to provide relief to the poor and for enlargement of medical facilities, advancement of education, and alleviation of poverty, economic uplift of downtrodden and carrying out other activities of general public utility. The Trust itself says that Rajasthan Government allotted 1,60,285 sq. ft of land at Chittorgarh at 50% concession for value of Rs. 1,27,41,804 on 19th October 2010. R1 Company already released around Rs. 33 crores for setting up this Hospital. This Trust says that the allegation of the petitioners saying that the Hospital project is an eye wash and was brought into existence only after the allegations were made in this CP is wholly misconceived; this CP was filed on 2nd March 2010 for allotment of land; whereas this CP was filed on 10th March 2010. Though the Trust has been receiving donations since 29.03.2007, it appears that the Trust for the first time applied for site only seven eight days before the filing date of this CP.
13. Now the point for consideration is whether making donations to the Trust amounts to mismanagement of the affairs of the company or not.
14. On hearing the submissions from either side, it is evident that neither the Trust nor R2 ever evinced the purpose of donation to the Board at any point of time until soon before moving this CP, had it really been for setting up hospital what prevented the management of the company to put forth its purpose in the Board before it had started making donations. If the Trust initially had intention to set up Hospital, having R2 worn two hats, one – as MD of the company, two – as Trustee of the Company, could it be imagined that MD was not aware of the purpose of donation to the Trust? I believe, certainly not. By this, the only objective inference that could be drawn is that the Trust had no plan to start Hospital, until few days before the petitioners filed this CP. Because for the first time, the Trust applied for land hardly one week before the petitioners had actually filed this CP. It is needless to say that if a company petition is filed, it will be filed only after service of the petition copy to the Respondents. The company started giving donations in the year 2007; the purpose of donation had come out only in the year 2010, that too few days before this petition was filed. What is exempted under income tax is wholly unrelated to the non-disclosure of purpose of donation; it is on record that this money was lying in Mutual Funds until before this petition was filed. Whether a donation could be made to corpus of the Trust is not a point here, perhaps it could be done under law, it does not mean that company is free to give donations to a Trust without even knowing the purpose of utility. I also don’t say that R2 should not continue as MD of the company and the Trustee of the Trust simultaneously, but he should be first beholden to discharge his fiduciary duty to the company before fulfilling his obligation as Trustee of the Trust. That he has not done. However at last, the Trust started constructing Hospital; therefore it pales into insignificance as to whether R2 had intention to divert the funds of the company for any illicit gain to him.
15. When the Trust says that it runs on charity and gets money from others to establish hospital, when it has got land from Government on concession, when it gets all exemptions canvassing it is for charity, how could this Trust collect 80% of the fee from the employees of the company, if so, what else charity could it do to the other people dying for want of health care? It is noticeable, rather writ large, in our country that two institutions, which shape the society and take it out from banal existence in which it has been since long, if not hundreds of years, one – health and two – education, these two now have become more business, purely working for profit. Now no body is shying to show up themselves as corporate hubs, they are holding out, not because they are under the impression that this word corporate is high sounding in the society we are living, but to make it obvious that they are all there to make profits. Seldom is it nowadays possible to pick up an institution to say it is truly working for the cause of the nation. Ordinary persons or individuals may not able to do charity, because they are usually subsumed in toiling to make both ends meet. Once they cross the stage of hand to mouth, they get entangled in another stage which really eluding people, for getting them reckoned with on socio- economic ladder. So there can’t be any guess that they would do something to the needy society. But to the premier institutions like this, they can, provided they have will in them. Maybe it is as any other business in other countries, but to us, it can’t be. Of course, I have read that UK has been maintaining a system where people, regardless of what they are, they get health care and education free, provided they are insured. On seeing such kind of arrangement, it is beyond doubt that people of it get the basic services which makes human being fit to live, and to live meaningfully. For we all now that education gives window to know what he is and what others, while shaping himself as full-fledged man. This, of course not happening in our country, maybe, because it is over populous or maybe due to budget constraints of the State. We are not on it. But I can say State is providing all kind of exemptions to the people coming forward with a tag of charity with a belief that these charity organisations will do service to the needy public. Of course, maybe for that reason, Birlas rightly give out their money for charity to work on health and education.
16. I say my discussion above is not out of box of the society we are living in , nor is even out of spectrum of sections 397 & 398 of the Companies Act, while working with this concept of oppression and mismanagement, it, often times, strikes my mind, as to Corporate jurisdiction u/s 397 & 398, it is equivalent to plenipotentiary jurisdiction embodied upon Constitutional Courts, the only limit is, it shall be limited or connected to the affairs of the company, unlike writ jurisdiction that can lay hands on any matter within the domain of the State.
17. To me, I don’t believe that the welfare of the employees of the company is any different from the affairs of the company. Here, the petitioners, who are members of R1 Company, raised a valid argument that if company is sole promoter of setting up Hospital for charity, the same could be done even by the company itself to enable the employees and workers of the company to avail medical services.
18. As shareholders provide equity as investment, employees provide their labour as investment to the company, which is indispensable to make the company productive. To make such investment effective, the concerns of the workforce of the company shall be given prime concern. It need not be said separately that the health of workers is the wealth of the company. Though money comes from the shareholders, fuel to their investment is work the workers render to it. In US, health care plans and managed care plans are in vogue in companies to support unwell workers, in some European countries, works councils are in vogue. In some countries of Europe, finance committees of workers set up, to some extent, they are given participatory role in companies. In fact, workers are also considered as stake holders in some states of US, such being the situation, when the workers of R1 Company, being deprived to have free treatment or at least concession in treatment in an Hospital which has come solely on the money given by the company, then such treatment to the workers is obviously an issue in relation to the affairs of R1 Company and ignoring the concern of the workers in the company is undoubtedly an issue prejudicial to the interest of the company. One should not be oblivious of the fact that heath concern of the workers is a value addition to the company.
19. For which, the Respondents placed a long argument saying that the company could not do on its own, because running Hospital is out of the objects of the company, and company has to work for profits and tax exemptions, which come to charity organisations, will not come to the Company. And all the more, the Respondent Counsel says that if the company maintains Hospital on its own, it will not cover social responsibility.
20. I do suppose all this is agreeable, but one fact is clear that when R1 Company along doing everything to this Trust to set up Hospital, it is highly illogical to see Trust is different, for more than one reason. This Trust is established by and in the name of founders. The management of R1 Company and Trust is one and the same; rather R2 is alter ego of the company and the Trust as well. It is in know of everybody, money is going from right hand to left hand, whether it is in left or right, it makes no difference, for the mind regulating left and right is the same, therefore, I don’t find any merit in the argument saying that Trust is different from R1 and therefore the power under 397 & 398 cannot be invoked to pass orders against Trust. Now it has become settled proposition of law that when funds of the company are found parked somewhere else, or any other entity is running solely on the money of that company, the CLB is empowered to see that money come back to the coffers of the company. These jurisdictional barriers that come for the sake of getting out of the clutches of law should be viewed seriously.
21. With all sense of responsibility, I say that when the facts are staring at the face of the Judge entailing him to pass orders to ward off miscarriage of justice, the judge will pass orders notwithstanding the fact of no definite relief over it. One should not get become oblivious of the fact that 397 & 398 jurisprudence is not adversarial proceeding, just as in any other civil suit. There, in a civil suit, lis is in between the parties, but a compliant under section 398 of the Companies Act, 1956, is only precursor to initiate proceeding, any decision or relief granted under this section will have multidimensional effect, it may affect the parities to it, it may affect creditors, it may affect the market, it may affect sellers to the company, it may affect consumers, at times it may affect even public at large, it may even have bearing on Government, however no doubt, it will undoubtedly effect the workers of a company, therefore, the issues cannot be gauged in a narrow spectrum of the allegation made by one party and defended by other party. Of course, adversarial proceeding in a civil suit is right, but there also, it cannot be the same to a suit filed in a representative capacity. A proceeding u/s 397 & 398 is almost akin to writ proceeding, there its domain is unlimited, here it is unlimited in respect of the affairs of a given company, when its affairs are so inter connected and interwoven to other entities having bearing on the affairs of the given company, then jurisdiction under section 398 will not remain handicapped to restore the money gone out to some other entity from the given company. This incidental jurisdiction is always conferred upon courts, no matter whether it is a Tribunal or a court, therefore the argument, the Trust saying since it is an independent entity, this Bench can’t lay its hands on the fund that has come to the Trust will not have any merit. This point was already dealt with extensively by this Bench in a case namely CPI India Real Estate Venture Ltd. v. Perpetual Infracon Pvt., which was upheld by Honourable High Court of Punjab and Haryana in Triangle Builders & Promoters v. CPI India Real Estate Venture Ltd. v. Perpetual Infracon Pvt. Ltd. in CAPP 28/2014 decided on 4th May 2015. In this case also, a company, other than the company whose affairs are questioned, filed an appeal against the order of this Bench saying that this Bench should not have passed an order u/s 397 & 398 against that company, other than the company whose affairs are questioned by the petitioner, but the Honourable High Court turned down the plea of the appellant by upholding the order of this Bench. There is no law that says if it is a Trust; it is immune from any proceeding unless suit is filed under section 92 of CPC. Section 92 of CPC is devised to remedy internal affairs of the Trust; it does not mean a legal proceeding cannot be initiated against a Trust in a matter, which has bearing on the affairs of a company.
22. For the reasons above mentioned, I hereby hold that there was no disclosure in the Board Meetings that the funds of the company started going out to the Trust for setting up Hospital at Chittorgarh, this came out for the first time when the petitioners were about to file this Company Petition, until such time, around 19 crores had already gone into the Trust from R1 Company and this was in turn gone into Mutual Trust. Whenever any donation is made to any Trust, it comes with a purpose, if no purpose is disclosed; normally no company will pump in crores and crores into a Trust without knowing the purpose of utility.
23. Nevertheless, at last, since Hospital is getting shape, I am not holding that money shall come back into company, since the establishment of hospital by the Trust is based on philanthropic purpose and 70% of work being complete, though the company failed to maintain transparency in disclosing about this project from the day one the money of the company started coming into the Trust, this Bench is not inclined to pass any status quo ante order.
24. The petitioners counsel relied upon A.K. Kraipak & Ors. V. Union of India & Ors (1969) 2 SCC 262; Board of Control for cricket in India v. Cricket Association of Bihar & Ors. (2015) 3 SCC 251; Kishor Kundan Sippy and Another v. Samrat Shipping and Transport Systems P. Ltd. & Ors. (2004) 118 CC 472; National Insurance Co. Ltd. v. Keshav Bahadur & Ors.; Boulting and Another v. Association of Cinematography Television and Allied Technicians (1963) 33 Comp Cas 475; (1963) 1 ALL ER 716; Globe Motors Ltd. v. Mehta Teja Singh & Co. & Ors. to say that R2 being an MD of R1 company and continuing as trustee of the Charitable Trust (R-38), he should not have even participated in the discussions for donating funds to the Trust, whereas here, R2 though not exercised its voting power, his position in the company would have undoubtedly influenced the other directors in taking decision for donating funds to the trust. For this reason itself, the interest in seeing donations come to the trust is in conflict with the interest of R2 as director of R1 Company. Therefore, it has to be considered that R2 acted in-violation of the fiduciary duty endowed upon him.
25. The petitioners counsel relied upon MKJ Enterprises Limited v. Bhansali Enginees Polymers Limited (CLB, Mumbai decision dated 24.09.2013) to say that the verification is procedural in nature and non-compliance of the same would not render the proceedings bad. This was given as a reply to the Respondents’ argument saying that Power of Attorney holder cannot affirm an affidavit upon the facts over which he has no personal knowledge.
26. R1 counsel relied upon Janki Vashdeo Bhojwani & Anr. vs. Indusind Bank Ltd. & Ors (2005) 2 SCC 217; Ramjan Mondal & Ors. vs. The State of West Bengal & Ors W.P. 25212 (W) of 2012.;, Pritam Singh vs. Ranjit Singh AIR 1972 Rajasthan 59; Vinay Kumar vs. Smt Purnima Devi AIR 1973 Rajasthan 32; Vidyawati Gupta & Ors. vs. Bhakti Hari Nayak & Ors (2006) 2 SCC 777; to say that when the Power of Attorney holder has no personal knowledge over the allegations made against the respondents, he shall not affirm the affidavit saying that he is acquainted with the facts of the case, here the POA holder having stated so without having any personal knowledge, this application is liable to be dismissed in-limine.
27. Looking at this argument from Respondents, when this concept of POA shall have personal knowledge of the facts placed by the petitioners is seen through the facts of the case, it is on record that the petitioners made out their case from the figures and facts born from R1 Company papers, not from some facts that are in the personal knowledge of the petitioners, hence this argument is not compatible with the facts of the case, therefore there is no merit in this argument.
28. R1 counsel further relied upon Arjun Singh vs. Mohindra Kumar & Ors. AIR 1964 SC 993 to say that repetitive applications on the same facts are not to be permitted to be agitated again and again; hence the same has been held to be abuse of process of court.
29. This is an application decided on the direction given by the Honourable Appellate Court, and there being no finding till date over donation made to the Trust, I don’t find any merit in relying upon the case supra.
30. R1 counsel relied upon In re Bengal Luxmi Cotton Mills (69 CWN page Nos. 130, 137) to say that when the petitioner, who has no knowledge of the allegation of oppression, mismanagement, misconduct or other acts prejudicial to the interest of the company, failed to secure affidavits of the persons having personal knowledge of the charges made, such defects cannot be cured nor the lacunae be filled up by other evidence, even though the oppression complained of is continuous course of oppression and continues even after the presentation of the petition. In this case, it is evident on the record, the counsel says, that the attorney holder has no personal knowledge of any of the events complained of.
31. R1 counsel relied upon Mohta Bros. (P) Ltd. & Ors. vs. Calcutta Landing and Shipping Co. Ltd. & Ors 1970 (40) CC 119.; to say that the shareholders have no right of access to the books of the company, thereby denial of access to such books is not an act of oppression, and if the petitioner cannot make out a case of mismanagement and oppression, because he is unable to collect material for that purpose, then it is not for the court to direct the directors of the company to offer inspections of the books and the accounts to enable t
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he petitioner to collect material for the petition u/s 397, 398. Since the petitioner herein could not place sufficient material to prove the allegations complained of, this application has to be dismissed. 32. Since no order is passed directing the respondents to provide any inspection, there is no occasion to apply this principle; hence the same is not discussed. 33. R-38 counsel relied upon Anil Kumar Agarwal & Ors. vs. Sunil Kumar Agarwal & Ors. 125 CC 168.; to say that the powers of CLB u/s 397 & 398 is limited in respect of the companies, which are covered by the Companies Act and does not extend to private firms, private trusts and other family properties, to extend such powers it is imperative on the Board at least to have the consent of the parties who are likely to be affected by it. The counsel submits admittedly there being no consent from this Trust, if any order is passed again this Trust, it could be nothing but travelling beyond the powers conferred upon CLB u/s 397 & 398 of the Companies Act, 1956. 34. This point has already been discussed extensively; therefore this is not dealt with again. 35. In the backdrop of it, I hold that this Trust shall at least give fifty percent discount of R1 employees and workers in the Hospital and 25% discount to retired workers and employees, if not, this Trust shall return the entire money to R1 Company. If R1 and the Trust really wanted to provide concession to the workers in Hospital, it would have certainly happened for two reasons, one – the management of the Trust is not different from R1 Company, two – the total sum of money required for setting up for Hospital has come into it from R1 Company. For these reasons, R1 Company atleast now shall enter into a covenant with the Trust that Hospital will provide 50% concession in the total Hospital Bill to the existing workers and employees and 25% concession to retired workers and employees. It is further clarified that this concession is not limited to investigation charges and room charges, it shall be on every Bill that comes from the Hospital, as to medicines, it is known fact that Hospital itself maintains medical shop, therefore the medicines shall be sold to the employees and workers without any margin over sale of drugs. The company shall enter into a covenant with the Trust within one month from the date of receipt of this order making a provision to the employees and workers of the company to avail 50% concession in the total bill of the hospital, including every bill in it, and 25% concession to the retired employees and workers. Until the company has not entered into the agreement with the trust as aforesaid, the company shall not donate any further to the Trust from the date of receipt of this order. If such arrangement is not made as aforesaid, R-2 who is a key man in the company and the trust as well shall restore the entire fund donated to the trust by the company till date within 6 months from the date of this order. 36. Accordingly, this CA 332/2011 is hereby disposed of.