Phenix Properties Ltd v. The State of Assam and 10 Ors

ORDER Date : 24-07-2024

¶1Heard Mr. K. H. Khandakar, learned counsel for the petitioner. Also heard Ms. M. Hazarika, learned Senior Counsel assisted by Mr. D. Khan, learned counsel appearing on behalf of respondent Nos. 4 and 5; and Mr. K. Gogoi, learned Government Advocate appearing on behalf of respondent Nos. 1, 2, 3, 6, 7, 8, 9, 10 and 11.

¶2The petitioner is a public limited company whose business operations have remained suspended since the year 2012. A criminal prosecution was initiated vide BI(EO) PS Case No. 15/2012 registered under Sections 120(B)/420/406 of IPC and in the process, it is claimed by the petitioner that the bank account of the petitioner was freezed by the investigating authority.

¶3The respondent BI(EO) has filed an affidavit in this proceeding and has taken a stand at paragraph 7 of the affidavit that though BI(EO) had originally objected to the petitioner company's move to alienate its assets, in view of the pendency of the aforesaid criminal investigation, however, after completion of the investigation, charge sheet has alreadt been submitted in the aforesaid case and therefore, at this stage, BI(EO) is not objecting to reopening of the bank account inasmuch as the same is now within the domain of the learned trial Court.

¶4It is apposite to record herein that, Security and Exchange Board of India (SEBI) had passed an order on 27.04.2016 inter alia directing the petitioner company to refund the money collected by the company to the investors through issuance of redeemable preference shares. The SEBI also Page No.# 4/5 granted permission to the petitioner to sell the assets of the company for the sole purpose of making the refunds as directed in the matter. However, it is alleged such sale permissions were not being granted by the authorities due to pendency of the investigation initiated by BI(EO).

¶5It is also seen from the order of the SEBI that the company and/or its management were permitted to sell the assets of the company only for the sole purpose of making refunds and deposit of the proceed was to be made in an ESCROW account to be opened in a nationalized bank.

¶6At this stage, the learned counsel for the petitioner submits that in view of stand taken by the BI(EO), there shall be no problem for operating the account as the investigation is already complete. However, it is the grievance raised by the learned counsel for the petitioner that such ESCROW account could not be opened for the reason of an order passed by the SEBI, whereby, the account of the petitioner has been frozen. Admittedly, such order is neither part of this record, nor a subject matter of challenge.

¶7Therefore, in the aforesaid litigational background, this Court is of the opinion that nothing survives to be adjudicated at present. However, the learned counsel for the petitioner at this stage submits that petitioner may be permitted to raise his grievances before the SEBI once again seeking permission to open an ESCROW account so that petitioner can sell the properties and comply with the direction of the SEBI passed on

27.04.2016, under Section 11, 11(4), 11A and 11B of the Securities and Exchange Board of India Act, 1992, as recorded as recorded hereinabove.

¶8Ms. M. Hazarika, learned Senior Counsel has also not objected to such prayer inasmuch as the petitioner shall have a liberty to seek Page No.# 5/5 clarification in this regard so far it relates to opening of an ESCROW account and sale of the properties as directed by the SEBI in its order dated 27.04.2016.

¶9Accordingly, the present writ petition stands closed with a liberty to the petitioner to approach the SEBI for redressal of his grievances, if any, including the grievance of not being able to open an ESCROW account and in the event, such application is filed, same may be considered as per law.

¶10This disposes the writ petition.

JUDGE Comparing Assistant

PageoNo.#o1/5 GAHC010291352019 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/8848/2019o PHENIXoPROPERTIESoLTD.o AoPUBLICoLTD.oCOMPANYoHAVINGoITSoREGD.oOFFICEoAToG.S.ROAD,o LACHIToNAGAR,oULUBARI,oGHY-7,oREP.oBYoTHEoDIRECTORoSRIoSOMNATHo GUPTA,oAGEDoABOUTo58oYEARS VERSUSo THEoSTATEoOFoASSAMoANDo10oORS.o REP.oBYoTHEoCOMM.oANDoSECY.oTOoTHEoGOVT.oOFoASSAM,oHOMEoDEPTT.,o DISPUR,oGHY-6 2:THEoDIRECTORoGENERALoOFoPOLICE oULUBARI oGHY-7 3:THEoDIRECTOR oBUREAUoOFoINVESTIGATIONo(ECONOMICoOFFENCES)oSRIMANTAPUR oRUPNAGAR oGHY oDIST-oKAMRUPo(M) oASSAM 4:THEoREGIONALoMANAGER oSECURITYoANDoEXCHANGEoBOARDoOFoINDIA oREGIONALoOFFICE oLoANDoToCHAMBERS o3RDoFLOOR o16oCAMACoSTREET oKOLKATA-o700017 5:THEoASSTT.oMANAGER oSECURITYoANDoEXCHANGEoBOARDoOFoINDIA Page No.# 2/5 LOCAL OFFICE 4TH FLOOR NEDFI HOUSE DISPUR GHY-6 6:THE DY. COMMISSIONER NAGAON DIST- NAGAON ASSAM 7:THE DY. COMMISSIONER CACHAR SILCHAR DIST- CACHAR ASSAM 8:THE DY. COMMISSIONER SHANKARDEV NAGAR HOJAI DIST- HOJAI ASSAM 9:THE CIRCLE OFFICER KALIABOR REVENUE CIRCLE DIST- NAGAON ASSAM 10:THE CIRCLE OFFICER HOJAI REVENUE CIRCLE DIST- HOJAI ASSAM 11:THE CIRCLE OFFICER SILCHAR REVENUE CIRCLE DIST- CACHAR ASSA Advocate for the Petitioner : MR B D DAS Advocate for the Respondent : GA, ASSAM Page No.# 3/5 BEFORE HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY