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Companies Law - Case Laws
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- 2019 (10) TMI 895
Winding up of the respondent Company - appointment of Official Liquidator - Sections 541 and 542 of the Companies Act, 1956 - HELD THAT:- The applicant company has been unable to explain the source of funds for acquisition of the land. The applicant has not been able to show bank statements, the statement of accounts, Bank Instruments etc. Despite several opportunities the records which would normally be in the power and possession of the applicants have been deliberately hidden from the court. This clearly raises a strong suspicion about the acts and conduct of the applicants. In the present case, despite directions of this court dated 5.9.2008 and subsequently, the applicants have failed to produce relevant documents to show the details. Clearly, this court would draw an adverse inference against the applicants for having withheld from ....... + More
- 2019 (10) TMI 545
Initiation of action against the petitioners for the alleged offences punishable under section 97(1) and read with Section 97(3) of Companies Act, 1956 - Petitioners have assailed the said action on the ground that proceedings initiated against them are barred by limitation - HELD THAT:- In terms of Section 97, the offence gets completed on expiry of 30 days from the date of passing the resolution or from the date of subsequent resolution. Since action has been initiated against the petitioner beyond the period of 30 days, prosecution launched against the petitioner is barred by limitation and therefore cannot be sustained. Proceedings initiated against the petitioners are quashed - Petition allowed.
- 2019 (10) TMI 378
Winding up petition - appointment of Official Liquidator as the provisional Liquidator - Sections 433(e) and 433(f) of the Companies Act, 1956 - HELD THAT:- The proceedings under IBC are independent and have an object different from the one envisaged under the scheme of liquidation provided in the Company Law. The former aims resolution by way of revival in a manner that benefits all stakeholders, the creditors as well as the company. Thus, the scope of the proceedings before the NCLT is wider - with the object of preserving the company and its business/ commercial activities. When transfer of winding up petition can aid in achieving the aforementioned objective, it ought to be allowed in the interest of justice. Merely because the learned Company Judge had ordered the winding up of the appellant company on 03.08.2004, it does not follow ....... + More
- 2019 (10) TMI 377
Resolution passed by the Board of Directors consisting of director not having DIN - Attachment of decretal amount - release of the amount deposited in the treasury to the respondent/decree-holder - Section 266 A of the Companies Act, 2006 - HELD THAT:- A perusal of Section 266 A of the Companies Act, 2006 reveals that every person intending to be appointed as a Director of a company or a Director of Company appointed before commencement of the Companies Amendment Act, 2006 was required to make an application for allotment of Director Identification Number to the Central Government and that every director appointed before the commencement of the Companies Amendment Act, 2006 was required to make the application within 60 days of the commencement of the said Act to the Central Government - Further Rule 2(1)(d) of the aforementioned Rules st....... + More
- 2019 (10) TMI 300
Transfer of the present winding up petitions to National Company Law Tribunal - whether in exercise of powers under the proviso to Section 434 of the Companies Act, 2013, this court should transfer the present proceedings to NCLT? HELD THAT:- It is manifest that two functionaries, namely, OL under the Companies Act, 1956 and Liquidator under IBC cannot concurrently carry out their functions. Such a proposition would create a needless confusion. Once a liquidator is appointed by the company court in saved matters, the process of liquidation commences. Ordinarily, the liquidator takes time and efforts to consolidate the assets of the respondent company, to evaluate the same and put them for auction. He seeks to take other steps to dissolve the company. Once this process has started, no purpose is served by handing over the same to another l....... + More
- 2019 (10) TMI 287
Oppression and mismanagement - Non-fulfillment of eligibility criteria as fixed under Section 244 of the Companies Act, 2013 - HELD THAT:- Admittedly, the pleadings were incomplete and the parties were yet to lay the relevant material and evidence before the Tribunal in support of the stands they would respectively take in their pleadings. In these circumstances, the Tribunal could not reach a finding in regard to the issues raised in the Company Petition. In so far as making out of a prima facie case for purposes of grant of interim relief in terms of provisions of Section 242(4) is concerned, the observations made by the Tribunal that the Respondents had been removed from the Board and their shareholding had been cancelled without due notice not in consonance with law are not based on application of mind. The proposition of law that the....... + More
- 2019 (9) TMI 1162
Condonation of delay in filing an appeal against the order of Tribunal - Period of limitation - Jurisdiction of Tribunal to register or give effect to conversion of the companies into LLPs - approach to Central Government only for compounding of offence - Section 56 of Limited Liability Partnership Act, 2008 - whether the appeal has been preferred within the prescribed period of limitation and in the event of delay whether the Appellant has carved out a case for Condonation of delay? - HELD THAT:- The appeal is hopelessly time barred. Even if, the period of limitation is computed from 15th October, 2018 i.e. the date on which free certified copy was made available to the Appellant, the appeal has been preferred beyond prescribed 45 days and in absence of even the slightest whisper in the Condonation of delay application about a reasonable....... + More
- 2019 (9) TMI 1161
Constitutional validity of Corporate social responsibility (CSR) - Vires of Section 135 of the Companies Act, 2013 - Rules 2 and 3(2) of the Companies (Corporate Social Responsibility Policy) Rules, 2013 - whether CSR is analogous to the imposition of tax - various type of definitions of the term ‘profit’ - validity of circular dated 18.6.18 and its effect as retrospective or prospective - petitioner had also submitted that other Partnership Firms, Sole Proprietorship, Trusts etc. are not brought under the purview of Section 135 of the Companies Act and only the companies are covered, hence the said Section 135 is discriminatory in nature. HELD THAT:- It appears from the provisions of the Companies Act, especially Section 135 thereof and also looking to Entries No.43 and 44 of List-I to the 7th Schedule to the Constitution of ....... + More
- 2019 (9) TMI 1140
Whether the Tribunal could direct the Transferor Company to make payment of alleged tax despite an express undertaking by the Transferee Company to make such payment on behalf of Transferor Company if found due and payable after adjudication? HELD THAT:- It is well settled by a catena of Rulings that while sanctioning a scheme of arrangement the right of Tax Authorities remains intact to initiate appropriate proceedings regarding recovery of any tax. The Tax Authorities concern is in regard to recovery of the outstanding tax dues and in the event of a scheme of arrangement/merger/amalgamation the Tax Authorities right to recover the outstanding tax dues must remain intact. Once a scheme has been sanctioned by a Tribunal in accordance with law, as admittedly in the instant case it is and the same goes unassailed, nothing precludes the Tax ....... + More
- 2019 (9) TMI 1008
Maintainability of suit - alternative remedy - Prevention of Oppression and Mismanagement - Jurisdiction of NCLT - right of dependent, individually or collectively to sell, transfer, dispose of or create third party interest in the undertaking - HELD THAT:- Section 242(2)(m), being the residuary power and which is equivalent to Section 402(g) of the Companies Act, 1956, is very widely worded and would confer such a power on the NCLT - The NCLT, per Section 242(4), is also empowered to grant interim relief as sought by the plaintiff along with the plaint in this suit also, of restraining the defendants from dealing with the immovable property of the defendant no.1. NCLT and its predecessor Company Law Board (CLB), in such situation as pleaded by the plaintiff, if finds merit in the claim of the plaintiff, have much wider powers than the po....... + More
- 2019 (9) TMI 995
Conversion of the Company from Public Limited to Private Limited Company - Change of name from “Sri Narasimha Cotton Press Company Limited” to “Sri Narasimha Cotton Press Company Private Limited” by addition of the word “Private” before the word “Limited” - HELD THAT:- Since all the requisite statutory compliance having been fulfilled, the conversion of the status of the Company from “Public Limited” to “Private Limited” as per Special Resolution passed at the AGM on 30.09.2017 is hereby approved in the interest of the Company and such change of status of the Company shall not cause any prejudice either to the members of the creditors of the Petitioner Company. The Petitioner is hereby directed to file with the Registrar of Companies, Andhra Pradesh, a certified copy ....... + More
- 2019 (9) TMI 895
Oppression and mismanagement - misutilization of funds - main controversy involved in the Petition is that the Respondents have not utilised the proceeds of the IPO as per the terms and conditions of the IPO mentioned in the Prospectus and Respondent No. 2 along with other Respondents has diverted the proceeds of the IPO to other entities which are under his control to defraud the members/investors of the 1st Respondent Company, which is a public listed Company - pre-requisites provided under Section 237(b) of the Companies Act, 1956. HELD THAT:- The powers conferred under Section 237(b) of the Companies Act, 1956 [Section 213(b) of the Companies Act, 2013] on the Tribunal are administrative in nature and can be exercised on the basis of the existence of circumstances as specified in the clause. The existence of the circumstances is a con....... + More
- 2019 (9) TMI 751
Company under Liquidation process - Withdrawal of amount for making payment to employees - HELD THAT:- Submission made on behalf of the office is to act on precedent of several orders earlier passed coupled with good feeling for approaching festive season. Purely by reason of several orders having been passed earlier, this application is disposed of in terms directed by last order dated 31st August, 2018, in respect of the prayers allowed thereby. Application disposed off.
- 2019 (9) TMI 714
Resale of old properties - HELD THAT:- The office is directed to resell this property on fresh sale notice. The notice be published in one English and one vernacular daily having wide publication in Pune. Date of sale will be 13th December, 2019. It goes without saying, information regarding sales should be uploaded by the office on its website. Offer documents are returned to Mrs. Sikdar. The offerers want return of respective earnest money tender instruments. The office is directed to return them. List on 13th December, 2019 for disposal.
- 2019 (9) TMI 713
Contempt of Court / Tribunal - Seeking initiation of contempt proceedings against the Respondents - application u/s 425 of the Companies Act, 2013 - alleged wilful violation of the order dated 23rd October, 2008 passed by the erstwhile Company Law Board, Additional Principal Bench, Chennai - no wilful disobedience of order. Whether an appeal under Section 421 of the Companies Act, 2013 is maintainable against an order passed by the Tribunal in exercise of powers conferred under Section 425 of the Companies Act, 2013 which empowers the Tribunal to initiate contempt proceeding for committing contempt of its own order? HELD THAT:- The Tribunal has been empowered to exercise and discharge such powers and functions as have been conferred on it or under this Act or any other law (‘Insolvency and Bankruptcy Code, 2016’) for the time ....... + More
- 2019 (9) TMI 712
Oppression and mis-management - various acts of fraud and fabrication of documents in an effort to remove the appellant from the Membership and Board of the 1st respondent divesting him of his entire investment - Section 397, 398 and 111(4) of the Companies Act, 1956 - whether the appellant has paid the amount and is not a defaulter? HELD THAT:- In case the person is a defaulter in payment of subscription to capital or any sum due against him, he will be denied the benefit of this Section. It is also not disputed that the appellant and 2nd respondent are promoter and director of 1st respondent. We note that the appellant is a retired Officer of Income Tax Department, he is very well aware of the law of the land in financial matters - The stand taken by the appellant is that 1st respondent was not having any bank account, therefore, he pai....... + More
- 2019 (9) TMI 535
Oppression and Mis-management - appellate remedy provided under Section 421 of the Companies Act 2013 - Maintainability of petition u/s 241 of Companies Act - HELD THAT:- In the instant case, the Companies Act, provides for an appeal from the order of the National Company Law Tribunal to the National Company Law Appellate Tribunal. Appeal is both on law and facts. Both can be adjudicated before the Appellate Tribunal. No doubt, the High Court has powers under Article 227 of the Constitution of India to entertain petitions where Courts and Tribunals under the jurisdiction of the High Court have acted in a manner which has resulted in abuse of process of law or where the facts are so gross that if the High Court does not entertain the petition, then it will result in such an injury which cannot be rectified. Under Section 248 (5) of the Com....... + More
- 2019 (9) TMI 534
Oppression and mismanagement - maintainability of the Company Petition - grant of interim relief- It is urged that the alleged acts of oppression/mismanagement are nothing but ‘operational issues’ arising in day to day management of the Company - Estoppel from denying the factum of seeking time by joint consensus with the Appellant to name the Independent Director - HELD THAT:- It appears that maintainability of the Company Petition in the context of eligibility of Respondent No. 2 (Petitioner) to file petition under Section 241-242 of the Act is not in controversy. The Appellant, however, has vociferously challenged finding as regards limitation at the very threshold stage. It is the settled position of law that limitation is a mixed question of law and fact. Any finding which is not informed of the reasons and does not rest ....... + More
- 2019 (9) TMI 533
Requirement to hold shareholders' meeting and creditors' meeting for approval of the proposed Scheme of merger - Scheme of Merger by absorption of Amanora Future Towers Private Limited with City Corporation Limited and their respective shareholders under Sections 230 to 232 of the Companies Act, 2013 - applicant/Transferee Company submits that since no reconstruction or arrangement is happening with its shareholders or creditors, there is no requirement to hold shareholders' meeting and creditors' meeting for approval of the proposed Scheme. HELD THAT:- The Applicant Company 1 is directed to serve notices along with copy of scheme upon: - (i) concerned Income Tax Authority with in whose jurisdiction the Applicant Company 1's assessments are made (PAN No.-AAKCA3074H Assistant Commissioner of Income Tax Circle 1(1) Incom....... + More
- 2019 (9) TMI 465
Restoration of name of the company in the Register of Registrar of Companies - failure to apply for the status of a dormant company - HELD THAT:-It is a matter of record that the factum of fraudulent activities of one of the Directors of the Company involving theft of machineries and raw materials to the extent of ₹ 2 Crores is taken note of by the Tribunal in the impugned order. In the given circumstances, it would be unjust to strike off the name of Company from the Register of Companies merely because it failed to apply for seeking of a Dormant Status. The twin grounds projected at the hearing constitute a valid and just ground for restoring the Company on the Register of Companies - restoration of the name of the Company on the Register of Companies is allowed subject to the Appellants complying with all the statutory requiremen....... + More
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