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    • Jul 23, 2023
    • 8 min read

An Open Letter to Two Public Servants: Mr. R Subramaniakumar and Mrs. Charu Sandeep Desai

Posted on 23/07/2023 (GMT 17:15 hrs)

Updated on 25/07/2023 (GMT 04.50 hrs)

Dear Public Servants,

Mr. R Subramaniakumar And Mrs. Charu Sandeep Desai,

Phew! Who are you? From where are you coming from to poke your noses in the internal matter between the Wadhawan brothers and NCD-FD-holders of the DHFL? The Wadhawan brothers promised to give back our money in total, that too, multiple times. Their pleas were simply ignored to pre-determinately hand over the DHFL to a special person, a secondary kin of a ruling-party’s favoured business tycoon. If anyone follow the chronology of the events⤡, it will be clear to him/her regarding the manipulation done by a third party, appointed legally by the ill-conceived IBC (2016–amended multiple times within 4+ years).

The intervention of the third party is required solely when there is a conflict between the erstwhile promoters and the FD-NCD Holders. Propositionally speaking, if p and q are placed in a position of amicable solution, there is no need for third party intervention.

However, no such conflict was found between the two said parties before Mukesh Ambani himself intervened by filing a case against the DHFL through his company Reliance Nippon Life Insurance. What was the requirement for doing any of that?? The FD-NCD holders were being paid regularly before that.

However, we suspect (or merely speculate on the basis of arthapatti pramana: see endnote) that it was a wedding (a gala event that cost over 300+cr) gift from Mukesh Ambani-ruling party collusion to Ambani’s son-in-law’s father, i.e., Ajay Piramal, CBE, an alleged insider trader and eco-terrorist.

The NCLT’s verdict (19.05.2021), directing the RBI-appointed CoC for DHFL to reconsider the full repayment proposal of the erstwhile directors of DHFL was left unheard. Mr. Piramal, accompanied by the CoC, got the order revoked within days (a special case of a VVIP?) at the NCLAT on 25.05.2021 without answering the NCLT’s pertinent questions within the given time period. Whether the occurrence can be admitted as a contempt of court or not requires judicial attention. Mr. Piramal thus presumably violated Article 215 of the Indian Constitution.

NCLT was forced to approve the resolution plan of the Piramals on 07.06.2021. Piramal “acquired” (?) the DHFL in September 2021 on the basis of the NCLT, the lowest quasi-judicial body’s second verdict.

Piramal and the CoC, even though they deliberately ignored NCLT’s first order under the pretext of “Error in jurisdiction vs. Excessive Jurisdiction” VIEW HERE ⤡ (As reported on 17th July, 2020 ©Law Street India), yet claimed ownership on the basis of the very same NCLT’s second (forced?) revised order. It is a paradoxical occurrence of ambiguous schizophrenic behaviour of the total system of the collusion of business tycoons and the ruling party.

The NCLT sounded their note of dissent in the first order. However, through the second order of NCLT—it was forced to act merely as a rubber-stamp following the NCLAT first order on 25.05.2021. Why was there a need for the NCLT at all in the process, then? It could well have been omitted entirely from the legal trajectory and NCLAT or the High Court or the Supreme Court itself could have given all orders in favour of the CoC in a prejudiced, biased, predetermined manner.

The role of the RBI is also to be questioned after going through the NCLAT’s first order. Shaktikanta Das (MA, History), an allegedly corrupted person⤡ blindly approved the Resolution Plan of the Piramal, without being able to identify lacunae and loopholes of the RP as pointed out by the NCLAT in their second order, which was thrown into the cold storage of red (or saffron?) tapes.

The thing is that, after the said NCLT’s first order in May 2021, the DHFL lenders stated the following:

“Lenders said the NCLT order may set a bad precedent, with more promoters moving the court to consider their offer.”

“That if the impugned orders were allowed to operate, it would be extremely prejudicial as it creates a new process, which is contrary to the express provisions of the Code and, if allowed, the CIRP will be never ending where parties will be permitted to keep making offers without regard to sanctity of the process or timelines, including after CoC has exercised its commercial wisdom and approved a plan, which has been submitted by an eligible resolution applicant in compliance with the Code,” DHFL’s lenders said in their appeal.”

SOURCE: Appeals Court Stays Order on Wadhawan VIEW HERE ⤡ (As reported on 26th May, 2021 ©The Mint)

The lenders said that the verdict of the NCLT would set a “bad precedent” (if their first order was being followed), since the DHFL case was the first case to go under the experimental, ill-conceived IBC (2016). “Bad precedent”? Such statement made by lenders is not only irrational or illogical, it is also ridiculously idiotic! Be it the first or last precedent, we must call spade a spade! An illegal resolution process does not become legal solely in order to legitimize the newly-introduced IBC! Why is the RBI-appointed CoC deliberately providing help to the present politico-legal administration and their engineered codes/laws/policies by the help of their wis(h)dom (The CoC can do no wrong? ‘Wis-h-dom’ of the CoC is presupposed?)?

This illegality of the RBI-appointed DHFL CoC was definitively pointed out in the NCLAT verdict (27.01.2022), which designated the CoC resolution process to be “contrary to law”, “void” and as containing “material irregularities”. It was indefinitely (?) stayed by the Hon Supreme Court on 11.04.2022 after Piramal approached it on 01.03.2022 without first approaching the High Court. Be it the NCLAT in May 2021 or in the Supreme Court, Piramal has always got speedy justice by being “more equal than others” ⤡.

Moreover, 63 Moons Technologies⤡, stated the following after the NCLAT’s second verdict:

For more information, view the following links/documents:

NCLAT asks CoC to consider 63 moons’ plea in DHFL Resolution Plan VIEW HERE ⤡ (As reported on 27th January, 2022 ©Business Standard)

The following provision of the Section 66 (1) of the IBC has to be seriously highlighted in this regard that provides for the benefit of all the creditors of an insolvent company without depriving anyone of their dues:

The following links will further aid in making out the background of the DHFL victim’s miseries:

It is to be noted that a Resolution Professional essentially comes within the meaning of ‘Public Servant’ under Section 2(c) of the Prevention of Corruption Act, 1988, and Section 233 of the IBCdoes not in any manner protect where he has been apprehended red-handed with the bribe amount (in Sanjay Kumar Agarwal Vs. Central Bureau of Investigation, Anti-Corruption Bureau, Dhanbad – Jharkhand High Court).

It is also to be duly noted that the old promoters of the DHFL, Mr. Kapil and Dheeraj Wadhawan, were not allowed to participate in the RBI-appointed CoC’s resolution process following the (controversial and ineligible) IBC U/S 29A ⤡, even though the Hon’ble NCLAT, New Delhi, declared: “Suspended Director, who was representing the Corporate Debtor and has submitted the Settlement Proposal is entitled to participate in deliberation and negotiation undertaken by the CoC.” (in Sanjeev Mahajan Vs. Indian Bank & Anr.)

With regard to the rights of the old promoters of DHFL, viz., the Wadhawan brothers, the Article 32A of the IBC itself can be considered:

“…the liability of a corporate debtor for an offence committed prior to the commencement of the corporate insolvency resolution process shall cease, and the corporate debtor shall not be prosecuted for such an offence from the date the resolution plan has been approved by the Adjudicating Authority under section 31…”

Hence, the so-called “criminal offences” (yet to be proved) of the Wadhawan brothers relating to fund diversion by creating fraudulent accounts hold no water. This Article is being misused by the DHFL-CoC to legitimize Piramal’s adverse possession of the DHFL by stating that the prior offences would not have any bearing on the “new owner”, who shall be freed from all liabilities altogether!

The Supreme Court of India dismissed the allegations made by the Enforcement Directorate (ED) and upheld the default bail granted to DHFL’s ex-promoters Kapil Wadhawan and Dheeraj Wadhawan by the Bombay High Court in the Yes Bank-DHFL Money Laundering case. No criminal charges against the Wadhawan brothers have been proved conclusively yet. This has a direct binding on the future outcome of the DHFL case. Moreover, they have donated Rs. 27.5 Cr or more (who knows? RTI not allowed!!!) to the super-rich ruling party, but it is difficult to understand the intention of the ruling party, who has mouse-trapped the Wadhawan brothers.⤡ What is up with this political vendetta? Just promoting two favored tycoons: Adani and Ambani, while excluding the other tycoons?

In addition to that, Section 19 of the IBC clearly states that:

Personnel to extend cooperation to interim resolution professional.

19. (1) The personnel of the corporate debtor, its promoters or any other person associated with the management of the corporate debtor shall extend all assistance and cooperation to the interim resolution professional as may be required by him in managing the affairs of the corporate debtor.”

It is clear from the above that the old promoters’ or suspended directors must have equal rights and equal say in the resolution process.

We are also greatly reminded of the known fact that Bankruptcy will not void personal guarantees: Hon’ble Supreme Court VIEW HERE ⤡ (As reported on May 22, 2021 ©The Times of India). Let us look at the rules and regulations of IBC (2016) for such deliberate avoidance of the Wadhawan brothers (“former” promoters of the DHFL) by the CoC to hand the DHFL over to Mr. Ajay Piramal, a hostile bidder and an alleged insider trader ⤡, which appears to be a case of adverse possession⤡ or squatter’s right.

The RBI appointed CoC administrator, Mr. R Subramaniakumar and the representative of the FD-holders, Mrs. Charu Sandeep Desai, are good for nothing, but they have swallowed the DHFL victims’ hard-earned money to continue with their expensive Resolution Process. If they are to be sued by the DHFL victims, they would fight against the victims by utilizing their money. Rs 100 Cr have already been preserved for the CoC for fighting the legal cases in the future. As public servants, what they have done is more than criminal activities. They must be publicly condemned.

See also:

A Resolution Professional will come within the meaning of ‘Public Servant’ under Section 2(c) of the Prevention of Corruption Act, 1988 and Section 233 of IBC does not protect where he has been apprehended red-handed with the bribe amount – Sanjay Kumar Agarwal Vs. Central Bureau of Investigation, Anti-Corruption Bureau, Dhanbad – Jharkhand High Court

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A NOTE ON ARTHAPATTI PRAMANA

Artha+apatti (conflict between objects of cognition/attestation of facts) pramana (instrument of cognition), as propounded by the Purva Mimansa darsana, is deployed when there is the attestation of the conflict between two established facts, e.g., Devadatta is stout but he does not eat during daytime, as substantiated from the accounts of the persons who observe him during that period. From this, by applying arthapatti, one can assume the fact that Devadatta must be eating during the night when nobody’s watching him. This is an example of drstarthapatti or arthapatti in the case of visual, perceptual cognition. An example of srutarthapatti (relating to auditory cognition) is: a person has come to visit Devadatta at his home. When he knocks at the door, someone from the inside shouts “Devadatta is not here”. From this, the hearer reasons that if Devadatta is not here, he must be somewhere else given the fact that he is still alive and is not found to be dead from the testimony or perceptual cognition of others. (Kindly note the logo of OBMA: arthanupapatti: artha+anupapatti, where anupapatti broadly means untenability or lacking/flaw/incompleteness/inadequacy of argumentation).

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