NCLT removes constraint on Firestar directors
The National Company Law Tribunal's (NCLT's) Mumbai bench on Monday granted the independent directors of Firestar International a relief in accessing their financial resources. The Bench of Judges B S V Prakash Kumar and Duraiswamy has vacated the restraint order of February 23.
Firestar's independent directors, Gautham Mukkavilli, a former executive at PepsiCo; Suresh Senapaty, who used to work with Wipro; and Sanjay Rishi, who was with American Express, had asked the court to grant them access to their financial assets. They said their role in the company was limited and they had little powers to oversee the auditing or operational functions.
The two diamond companies Firestar International, owned and managed by Nirav Modi, and Gitanjali Gems, owned and managed by Modi's uncle Mehul Choksi, are embroiled in a crossborder financing scam, which came to light when the Punjab National Bank (PNB) informed the stock exchanges on February 14 that a few rogue employees had extended Letters of Understanding (LoU) worth ~129 billion to subsidiaries of the diamond firms.
PNB said the LoUs were issued and provided to the foreign branches of various Indian banks without the knowledge of senior executives.
Investigators have frozen Modi and Choksi's domestic accounts, and seized real-estate and other financial properties. Last week, PNB decided to honour ~65 billion of the fraudulent LoUs issued on behalf of Modi to seven lenders.
One significant power the Enforcement Directorate, the income tax department, the Serious Fraud Investigation Office and the Central Bureau of Investigation have is to 'freeze' the assets of any of the accused - land, securities, material property and bank accounts. This may be done even if formal charges have not been framed or a conviction order not passed by a court.
Since no formal charges have been framed or intimated against the three independent directors, the ability to restrain access to one's financial resources was tantamount to constraints on personal liberties, counsel for the independent directors told the Bench.
On February 23, the Mumbai bench of the NCLT had passed a restraint order, wherein the independent directors of the firm were allowed to access only up to ~2 million in cash. They can now access their property, illiquid or liquid financial assets and bank accounts, while investigators will continue to investigate the scam.
The Bench has also allowed two applicants the liberty to withdraw ~100,000 and ~200,000 per month, respectively.
Some of the two firms' secretaries have sought employment elsewhere. They are worried that their future income might be seized by investigators. The Bench has asked counsel representing these secretaries to provide a note detailing this information at the next hearing. As of March 26, most of the applications, barring a few which will be heard on April 16, have been heard by the bench.