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• 2022 (9) TMI 1351
  
  Suit for recovery alongwith interest - Order XXXVII of Code of Civil Procedure, 1908 - whether the averments in the pleadings constitute an acknowledgment of debt to the extent of the amount, the defendant agreed to refund? - HELD THAT:- In the light of the exposition of the legal connotation of the terms “debt” and “acknowledgment” the pleadings extracted it satisfies the requirement of both “debt” and “acknowledgment” to the extent of the amount, which the defendant agreed to refund. The submission on behalf of the defendant that, in the absence of a written contract to refund the amount, the tenability of the suit itself is suspect, does not merit acceptance unreservedly, if the afore-extracted pleadings are construed in the light of the aforesaid enunciation of law. In my view, the ackno....... + More

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• 2022 (9) TMI 1350
  
  Seeking to transfer of the Company Petition to the National Company Law Tribunal (NCLT) for being heard and decided in accordance with the provisions contained in Insolvency and Bankruptcy Code, 2016 (IBC) - alleged malafide conduct of the ex-directors of Futura - Section 434 of the Companies Act, 2013 - HELD THAT:- Commitments and undertakings were made on umpteen occasions to be observed in breach. Simply, it cannot be urged that Futura and its ex-directors had no adequate opportunity to make amends. Thus, the touchstone, on which irreversibility is to be judged, is also indicated by observing that so long as no actual sale of the immovable or movable assets of the company in liquidation takes place, nothing irretrievable can be said to have been done which would preclude the Company Court from exercising discretion to transfer the proc....... + More

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• 2022 (9) TMI 1298
  
  Validity of Arbitral Award - seeking winding up of company (Devas) - it was alleged that Devas was formed for a fraudulent and unlawful purpose and its affairs had been conducted in a fraudulent manner - Section 271(c) read with Section 272(1)(e) of the Companies Act, 2013 - HELD THAT:- An independent but concurrent opinion was authored by the other member of the NCLAT, Mr. V.P. Singh, Member (T). Mr. V.P. Singh in his judgment inter alia held Devas could not have delivered Devas Services in India due to the lack of policy framework and licensing regime for a new service like Devas Services - Devas conceded before the NCLAT that the design of DMR and CID was at a conceptual level and were to be developed at a future date. It was also not disputed that DMR and CID were portions of the Devas’ Device and not the Devas’ Device its....... + More

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• 2022 (9) TMI 1218
  
  Oppression and Mismanagement - requisite shareholding to maintain the Petition, present or not - waiver of the shareholding requirements mentioned in Section 244 (1) (a) of the Companies Act, 2013 - Section 241 and 242 of the Companies Act, 2013 - seeking withdrawal of second waiver application - HELD THAT:- Admittedly, before passing of the impugned order, an opportunity of Hearing was given to the Appellants. In this connection, a cursory perusal of the ingredients of Rule 111 (1) of the NCLT Rules, 2016, Filing of objections by Respondent, Form and Consequences, unerringly points out that the Respondent, if so directed, shall file Objections or Counter within the time allowed by the Tribunal. In effect, the Tribunal has an inherent power while exercising its discretion not to direct the Respondent to file a Counter / Reply / Response i....... + More

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• 2022 (9) TMI 806
  
  Seeking restoration of the name of the company, which was struck off by the Registrar of Companies, NCT of Delhi - section 252 of the Companies Act 2013 - HELD THAT:- It is seen from the documents available on record that the company possesses lands registered in its name. Besides it is seen that the appeal has been filed within the stipulated period prescribed under Section 252 of the Act. Needless to say, that Income Tax Department and ROC have raised no specific objection against the restoration of the Company subject to filing of statutory returns on payment of fees as prescribed. Moreover, nobody would be prejudiced by the restoration of the name of the Company. On the contrary, the restoration is clearly in the interest of the Company. Even, if the management of the Company entrusted with the responsibility of filing of statutory re....... + More

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• 2022 (9) TMI 643
  
  Legislative power of state government - Matter covered within the scope of Companies Act - Beneficial provisions of the Maharashtra Protection of Interest of Depositors (In Financial Establishments) Act 1999 (MPID Act) - whether the provisions are entirely denuded and reduced to meaninglessness when the financial establishment in question is a corporate entity in liquidation? - HELD THAT:- MPID Act does not contemplate a situation of a company in liquidation at all. There are two reasons for this. The first is that the MPID Act deals with a financial establishment as defined. It is not limited to a company. In that scenario, i.e. where the financial establishment is not a company, no question of winding up arise. Second, it appears from a careful reading Section 4 that the MPID Act is in fact predicated on the financial establishment (whe....... + More

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• 2022 (9) TMI 642
  
  Sanction of Scheme of Amalgamation - Section 230 to 232 of the Companies Act, 2013 read with Companies (Compromises, Arrangements and Amalgamation) Rule, 2016 - HELD THAT:- In view of Section 230(9) of the Companies Act, 2013, the Tribunal is empowered to dispense with calling of a meeting of creditors or class of creditors where such creditors or class of creditors, having at least ninety percent value, agree and confirm, by way of affidavit, to the scheme of compromise or arrangement. Application allowed.

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• 2022 (9) TMI 641
  
  Oppression and mismanagement - Seeking appointment of Presidential Nominee of Petitioner No. I to act as the President of FHRAI with the stipulated Term of 1 year from the date such Presidential Nominee assumes charge as President of Respondent No. 1 - seeking restraint on Respondent Nos. 2 to 15 from making any changes to the Articles of Association of Respondent No. 1 unless such changes have been made with the leave of this Hon'ble Tribunal - interpretation of Article 52 of the Constitutional document of Respondent No. 1 - HELD THAT:- It is seen from the facts submitted by the Petitioners and not denied by the Respondents that many other names of candidates of HRAEI were proposed/nominated to be elected act as President, but they declined to accept the position saying that it is the Petitioner No. 11 who was nominated by the member....... + More

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• 2022 (9) TMI 570
  
  Seeking grant of Anticipatory Bail - signature of some of the shareholders is forged is incorrect - forged and fabricated Power of Attorney - offences punishable under Section 120-B read with Section 420 of IPC with Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act - HELD THAT:- This court is of the opinion that non-availability of Original Power of Attorney alone would not call for any custodial interrogation. It can be seen that applicant Mukesh Bhanwarlal Bhandari, who is a senior citizen has appeared before the Investigating Officer on 09.06.2022, 26.06.2022, 16.08.2022, 23.08.2022. The applicant Siddharth Mukesh Bhandari also appeared on 09.06.2022, 22.06.2022, 14.08.2022, 16.08.2022 and 23.08.2022 before the Investigating Officer. The offences alleged against the applicants are under Sections 420/468/471/1....... + More

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• 2022 (9) TMI 396
  
  Appointment of Chief Financial Officer - Whether Article 140 of AoA is the only provision which is applicable with regard to appointment of CFO in R-2 Company and no reference to and compliance of any provision of the Companies Act, 2013, particularly sections 203, 184 and 189 therein is necessary? - If reference to section 203 is found to be necessary for looking at eligibility of a suggested nomination, whether R-1’s suggestions of the names of Mr. Devendra Mehta and Mr. Venkataraman Subramanian as first and second nominations complies with the requirement of article 140 of the AoA for appointment of CFO? HELD THAT:- A reading of the section on KMP in the AoA, under which Article 140 is included, indicates that the CFO is considered a KMP, and Rose Investments (R-1) has the right to nominate a person for the position of CFO, and i....... + More

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• 2022 (9) TMI 281
  
  Seeking directions to immediately release the pending payments - seeking directions to release payments against all future invoices which are raised in accordance with the provisions of the PPA without delay and in a timely manner - principles of natural justice - HELD THAT:- There is no dispute to the proposition that having regard to the jurisdiction exercised by the High Court under Article 226 of the Constitution of India, availability of alternative remedy is not really a bar to exercise such jurisdiction. Nonetheless as the jurisprudence has evolved over the years, Constitutional Courts have imposed upon themselves self-restraint in not exercising such jurisdiction barring in certain exceptional circumstances, such as, violation of principles of natural justice, when the vires of a Statute is challenged, etc. However, the same is no....... + More

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• 2022 (9) TMI 280
  
  Seeking repayment of loan - deposit by means of Clause 9 (iii) of the Private Trust Deed - conveyance subject to stamp duty or not - principles of natural justice - HELD THAT:- This Tribunal comes to a consequent conclusion that the impugned order dated 26.05.2022 bristles with legal infirmities, because of the fact that it had not taken into account of the contents of notes of the submissions furnished by the Appellants and the 1st Respondent/Trust in Comp. App (AT) (CH) Nos. 43 and 45 of 2022 in a Qualitative, Quantitative and Threadbare fashion, not discussed about the pros and cons of the submissions made in a detailed manner, in the absence of Adjudication / Determination of Controversies relating to the Movables owned by the Applicant (Deceased), in an appropriate proceedings by the Competent Forum, including the aspect of the plea ....... + More

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• 2022 (9) TMI 225
  
  Correction of error in furnishing PAN - list of shareholders - Seeking directions to ROC to strike out the PAN details of the Applicant mentioned against one H.L. Vaishnav from the list of subscribers - HELD THAT:- On perusal of the documents on record, it is seen that the same PAN of the Applicant is used in Form-I of the Respondent Company, but the entry against the "Name", "Father's Name" and "DOB" is different from that Applicant PAN Card submitted by the Applicant at Annexure P-2. On Comparing these documents, a doubt is raised as to the veracity of the documents/details that are entered in the Company's Form-I (i.e. Application and Declaration of incorporation of the Company). Also, Form-I is not submitted by any practising Professional rather by one member of the Company namely Anil Kumar Sharma has submitted it. List the matter on 08.09.2022 before the Regular Bench.

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• 2022 (9) TMI 144
  
  Criminal contempt for lowering the authority of this Appellate Tribunal, interfering with the course of proceedings before this Tribunal and for obstructing administration of justice, finding them guilty for Contempt of Court - limitation for action of contempt - Section 20 of the Contempt of Courts Act - HELD THAT:- Admittedly, the Contempt case is filed on 14th September, 2021, the alleged acts of Contemnors constituting criminal contempt must be within a year proceeding to the date of filing i.e., 14th September, 2021. For the contemptuous acts of Contemnors beyond one year preceding to date of filing, the Tribunal is not competent to issue notice for criminal contempt. The alleged acts of contemnors prior to 14th September, 2020 are not cognizable. The Contemnors nos. 1 & 4 being erstwhile Resolution Professionals and Members of S....... + More

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• 2022 (9) TMI 65
  
  Revival of company under liquidation - Section 454 of the Companies Act, 1956 - HELD THAT:- There could not have been much variation in the position of the assets, since the winding up petition was filed in and about August 2016 under Section 433 of the Act and accordingly, the petition was admitted on 31.08.2016 - the Company Court appointed the OL as the provisional liquidator, and directed the directors of the company-in-liquidation to file the statement of affairs, within twenty-one days from the said date. The onus, as regards the affairs of the company-in-liquidation, at that point in time, was put on the appellant. The appellant, clearly, tarried and did not show enough alacrity to file a revival scheme - this state of affairs continued to operate, even after the appellant had obtained an order dated 31.01.2018, whereby the OL was ....... + More

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• 2022 (9) TMI 22
  
  Sanction of scheme of arrangement - Section 230 of the Companies Act, 2013 - HELD THAT:- From perusal of the Section 230(3) of Companies Act 2013, it is observed that the notice is required to be sent only if the meeting is directed to be convened under Section 230(1) of Companies Act 2013 - Since, in the instant case the meetings are dispensed with and no meetings are being convened under the provisions of Section 230(1) of Companies Act 2013, therefore the question of serving notices in terms of Section 230(3) and 230(5) do not arise. Notices are required to be sent to the Sector Regulators and objectors in terms of Rule 16(2) of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 at the time of filing Second Motion application, while intimating the Noticees about the next date of hearing of the Application. In view ....... + More

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• 2022 (8) TMI 1205
  
  Seeking restoration of the name of the respondent Company, i.e., M/s. Ghantakaran Mahavir Developers Pvt. Ltd. in the register maintained by the Registrar of Companies - Section 252(3) of the Companies Act, 2013 - HELD THAT:- To render assessment order valid in the eyes of Law and to enable the Appellant to take steps for recovery of taxes and for any further consequential proceedings, the respondent company's name needs to be restored to the Register of Registrar of Companies as if the name of the company was never struck off. Denial to restore the name of the respondent company in the Register of the RoC will not only condone the wrong doing of the respondent company but it will also encourage escapement of tax liabilities by such subterfuge, which will be prejudicial to the interest of the revenue in the long run. With respect to t....... + More

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• 2022 (8) TMI 1204
  
  Seeking restoration of name of the Company namely, M/s. ES Recycle Private Limited on the Register maintained by the Respondent - Section 252 of the Companies Act 2013 - HELD THAT:- On perusal of the Income Tax returns for a period of two (2) years preceding's the date of struck off, shows the Company has been active and carrying on its business activities and also paid a tax to the tune of Rs. 2,97,275/- for the Assessment year 2017-18. Further, the Applicant Company has also filed the GST returns for the Financial year 2017-18 and also the Central Sales Tax filed by the Company for the year 2012 to 2017. A perusal of the above documents show that the Company has been active and carrying on its business activities two (2) years preceding from the date of strike off. Taking into consideration the provisions of Section 252 of the Compa....... + More

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• 2022 (8) TMI 1163
  
  Oppression and mismanagement - Jurisdiction of NCLT to decide the issue - Principle of natural justice - Transfer application - Jurisdiction of NCLT / its bench - Allegation that forged documents have been filed before the CLB - Appeal is maintainable under Section 421 of the Companies Act, 2013 or not - Whether the Impugned Order dated 31st May, 2021 allowing the Section 8 filed under Section 241 and 242 of the Companies Act is a valid order passed in accordance with the law? HELD THAT:- Company Appeal (AT) No. 31 of 2022: The Acting President has rightly observed that the Bench which has been hearing is competent to decide the Company Petition and there is no occasion for asking for re-assignment of the Petition to a Division Bench that has logistical capability to decide CA-18 of 2019 and complete Company Petition. The bench was fully ....... + More

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• 2022 (8) TMI 1117
  
  Power to Company secretary to initiate suit or any other legal proceedings in the absence of specific authorization - locus standi of the Company Secretary in the main application - fulfilment of requiremnt of section 90 - that every individual who holds beneficial interest over the company shall make a declaration specifying the nature of the interest in form No. BEN-1 within a period of 90 days - officer in default - section 2(60) of the Companies Act, 2013 - HELD THAT:- There is no idealistic overstatement in holding that company secretary is required to act not only with adequate diligence but with proper and necessary diligence while discharging his duties by sounding the knell in order to alert all concerned including the board of directors on occasions where he apprehends deviations from sound corporate principles and prudent gover....... + More

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