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Companies Law - Case Laws
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2016 (12) TMI 1881
Assignment of debts - petitioner submits that the said deed was not taken into consideration in the earlier proceeding as the said deed was not registered and having regard to the fact that the said deed is registered, there cannot be any impediment to pray for the reliefs claimed in the petition - HELD THAT:- The prayers as made in the petition cannot affect right of any of the parties since admittedly it appears that at least one of the secured creditors has assigned the debt in favour of the petitioner. The purpose is to formulate a scheme which could be acceptable to all the creditors and would be beneficial for all.
The petitioner shall hold separate meetings of the secured and unsecured creditors including debenture holders, if any, after publishing advertisements once in the English daily “The Times of India”, once in the Bengali daily “Aajkal” and once in the Hindi daily “Dainik Vishwamitra”. Mr. Sondwip Mukherjee, Advocate, Bar Library Club, is appointed as the Chairperson of the meeting of all the creditors at an initial remuneration of 4000 GMs. to be paid by the petitioner. The notice of publication and other details shall be settled by the Chairperson. There shall be an order in terms of prayer (f) of the petition. The matter is made returnable on 30th January 2017.
The interest of the unsecured creditors is not going to be affected in the event a meeting is called of all classes of creditors. However, a copy of the petition has been made over to Ms. Agarwal in court today.
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2016 (12) TMI 1843
Establishment of NCLT Bench in the State of Kerala - suitable place for establishing an independent NCLT bench - Seeking direction to the respondents to continue hearing of Company Cases having jurisdiction in State of Kerala by the Hon'ble High Court till NCLT Bench is established at Ernakulam for hearing of Company Cases - establish NCLT Bench at Ernakulam on a time bound basis in the interest of justice - According to the petitioners, since a large number of cases under the Companies Act such as, company claims, company petitions, company applications, company suits, company cases, adjudication appeals, connected criminal complaints, miscellaneous company applications etc. are pending consideration before this Court, establishment of independent and separate NCLT bench for the State of Kerala at Kochi is absolutely necessary and if Tribunals are not established in each State, the basic objective with which, NCLTs are being established, that is, to speed up the company cases, will not be fulfilled - HELD THAT:- Though the aforementioned submissions appear to be attractive at the first instance, they cannot be accepted for giving a direction to the respondents to establish NCLT bench in any particular State. It is for the authorities concerned to take a decision in the matter. This Court cannot frame guidelines or sit as an appellate authority to direct the policy makers to frame policy in a particular manner. It is for the authorities concerned to take a decision in respect of establishment of benches at a particular place or State.
Since it is for the respondent authorities to take a decision in the matter and as this Court will not normally interfere with the policy decision of the State, we decline to entertain the writ petition. The writ petition fails and the same stands dismissed. It is open for the petitioners or the affected persons to make representations before the appropriate Government for establishment of NCLT bench in the State of Kerala, if they so choose.
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2016 (12) TMI 1841
Transfer of shares - Reference of CP to arbitration for the parties - dispute resolution scheme - sum and substance of the petition is that the petitioner needs reinstatement of her as director of the company and for setting aside the impugned sale of the property - role of petitioner - in the company after execution of the SPA dated 2nd November, 2015 - termination of the SPA by the petitioner - applicability of section 8 of Arbitration Act - scope of section 241 of the Companies Act, 2013 - HELD THAT:- On perusal of the SPA, it is evident that there is a clause for shifting of the registered office, accordingly the registered office has been shifted, the petitioner also resigned from the company on 2nd May, 2015. There is also a clause 4.3 of the SPA with an undertaking that the petitioner is no longer associated with day-to-day business of the company, she shall not be responsible to any business decision except to the liability due to her shareholding.
The petitioner is bound by the SPA reciting that she would not be associated with the day-to-day business of the company from 1st October, 2015 and she is not responsible to any of the decisions of the company since 1st October, 2015 except to the extent of the liability due to her shareholding. The respondents already tendered to make payment towards first tranche of payment and for transfer of first tranche of sale shares before first transaction closing date, i.e., 1st October, 2016, through the letter dated 26th September, 2016 along with Xerox copy of DD for an amount towards "first tranche purchase on price" - For the petitioner herself agreed to be away from the affairs of the company on execution of SPA, then, she could not now ask for her re-entering into the company on the ground that the SPA between them has been terminated. When the termination clause has been envisaging to be invoked on mutual consent, the petitioner would not get any occasion to terminate the agreement unless default has been committed by the respondents side as mentioned in the agreement. Therefore, it cannot be said that the petitioner could have been permitted to have participatory role in R1-company after 2nd November, 2015 basing on the shareholding of her. Accordingly, there could not be any merit in the argument that the petitioner was left in dark in relation to the affairs of the company.
It appears that the petitioner felt that she is aggrieved for the Bank loan has not been paid and financial statements not provided. Other aspects of allegation of scrap agreement, they are nowhere present in the SPA, therefore, this allegation of understanding in regard to the scrap can't be said as part of the SPA, and, hence, it could not become a cause for termination of the SPA. As to payment of 37 crore, it is no where covenanted that R2 shall pay off the loan before first tranche of payment, no collateral asset security has been given by the petitioner to the loan pending, moreover some loan liability brought over along with the company remaining loan liability has been accrued upon the company in the tenure of the petitioner in the management from 19th January, 2012 - 25th May, 2015, thereafter the petitioner brother continued as nominee director until November 2015 - Since the respondents timely sent a letter for transfer of her first tranche of transfer of shares along with the photo copy of DD towards first payment of consideration, she on her own could not have terminated the agreement, therefore, termination of agreement by petitioner herself is not valid.
It is a fact that the company already laden with debt burden, therefore, to clear the same, the company transferred the property to the third party long before execution of share purchase agreement, therefore, the acts of the respondents could not be considered, which the petitioner painted as conduct oppressive to the interest of the petitioner. If at all such alienation is invalid for short of any compliance, this forum is not the place to decide the issue that is on face not indicative of any conduct falling within the ambit of section 241 of the Companies Act, 2013 - If the petitioner has any grievance over proposal of transfer of shareholding basing on share purchase agreement, a remedy is carved out in the same agreement under arbitration clause, therefore, the petitioner has to go before arbitration but not come before this Bench by inventing pleadings and reliefs not supported by the facts existing in the case. Assuming the termination made by the petitioner is valid, then also she is bound by the arbitration clause because the proposition is well settled that arbitration clause will remain in force even if the agreement constituting arbitration is terminated for any reason. Therefore, the arbitration clause in such agreement is still binding upon the party.
This Bench is of the view that this dispute is covered by section 8 Arbitration and Conciliation Act, 1996, because the company, the petitioner and R2 being parties to the SPA, and the issues in it being decided not falling within the ambit of section 241 of the Companies Act, 2013, it has to be construed that this dispute has to be referred to arbitration not to be decided before this Bench - Petition dismissed.
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2016 (12) TMI 1836
Sanction of proposed scheme of amalgamation - Ministry of Corporate of Affairs appears to have fowarded a copy of the scheme to the Income Tax Department on 6/14.10.2016 with a request to forward their comments/observations/objections, if any, on the proposed scheme of amalgamation within 15 days, but till date no objection has been received from the said authority. Under such circumstances, it is presumed that the Income Tax Department has no objection to the sanction of the scheme.
HELD THAT:- In the event, the petitioners supply a legible computerized printout of the scheme and the Schedule of assets in acceptable form to the department, the department will append such computerized printout, upon verification, to the certified copy of the order without insisting on a handwritten copy thereof - Petition disposed off.
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2016 (12) TMI 1835
Transfer of cumulative redeemable preference shares in favour of Respondent No.1 - rectification in register of members - HELD THAT:- There is nothing to suggest that the compromise amounts to redemption of the preference shares or conversion of the amount due thereon (or any other reduced amount) into a corporate debt. Respondent No.2, even after the sanction of the scheme, continues to be a preference shareholder with agreement to accept 70% of the face value of the redeemable preference shares over a period of 10 years without any dividend. There is no question of any redemption of shares or conversion into a corporate debt or extinguishment of transferability of the preference shares as a result.
Appellant submits that Respondent No.2 has transferred the subject shares to Respondent No.1 in contravention of law including breach of RBI guidelines. Nothing is pointed out as to what particular contravention is committed by Respondent No.2 in transferring the shares. There is no merit in this contention accordingly.
Appellant further submits that the shares of the face value of ₹ 100/ of 5,00,000 preference shares of the Appellantcompany have been transferred by Respondent No.2 to Respondent No.1 at a price of ₹ 5,000/ and that the value of the shares has thereby been severely undermined by Respondent No.2. The value of the shares is a matter between the transferor and transferee. The Company can hardly be concerned with the same. In any event, such value is not binding on the Company. There is, accordingly, no merit in this contention also.
Appeal dismissed.
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2016 (12) TMI 1824
Oppression and MIsmanagement - misdeeds and dishonesty in the maintenance of minutes of the company - HELD THAT:- On the directions of this Appellant Tribunal the Appellant Company also produced the originals of the relevant minutes of meeting. The 1st Respondent also produced the Photostat copies of the minutes of meeting of the same period which were forwarded to the 1st Respondent for confirmation.
The basic principle of justice delivery system involving offence resulting punishment is that if any-allegation is made by any person before a court of law or Tribunal such person is required to support the allegation by bringing on record some evidence to suggest that a prima facie case is made out and there are good reasons for seeking an order. Therefore, the sentence "Supported by such evidence as may be necessary for the purpose of showing that applicants have good reasons for seeking an order for the conducting an investigation into the affairs of the company", as mentioned below clause (a) of Section 213 is applicable in all cases and the applicant(s), whoever prefers application under Section 213, whether they belong to category as mentioned in clause (a) or clause (b), such evidence is required to be relied upon not only to justify the allegations, but also to Show that there is a good reason for seeking an order, to enable the TribunaI to form its opinion - The other basic principle of justice delivery system that a court or a Tribunal while passing an order is not only required to give good reason based on record/evidence but also required to show that after being satisfied itself the Court/ Tribunal has passed such order.
The sentence “if it is satisfied that there are circumstances suggest" mentioned in clause (b) of Section 213 is applicable to all cases, irrespective of the category to which the applicant(s) belong i.e. clause (a) or clause(b) of Section 213 of the Act - The Tribunal is not expected to refer all the evidence to form opinion about the malpractice or for fraud mentioned in sub-clause (i), (ii) and (iii). It is the-job of the Inspecting Authority (Inspector) to go through the evidence before coming to a conclusion and forming opinion that malpractice or fraud mentioned under sub clause (i) or (ii) or (iii) has been committed by one or other member or director(s) or person(s) or the company.
In the present case, the Tribunal has relied on certain record/evidence, applied it mind, satisfied itself and given good grounds to Order investigation, there are no reason to interfere with the impugned order. For the reason aforesaid and in absence of any merit, appeal is dismissed.
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2016 (12) TMI 1820
Oppression and mismanagement - Disposal of immovable property of company - HELD THAT:- The parties have acted in tandem till the passing of the Board resolution dated 30.07.2010 wherein the parties, namely petitioners 1and 2 and respondents 2 and 3 have made efforts to fortify the C & F business carried at Jharkhand and Bihar probably from the clutches of liabilities which they were well aware was looming on the horizon, particularly after the storm on 29.05.2010 which it is claimed had inflicted severe damage to the manufacturing facilities and thereby crippled production of the 1st respondent company and which had also made them approach the bankers jointly as evident from the letter dated 15.06.2010 sent to SBI wherein the co-operation of the bank had been solicited claiming that the disputes amongst them have been resolved.
Since the main thrust of the challenge of the petitioners seems to be in relation to and concerning the disposal of the immovable property of the company, as an instance oppression of course in addition to their to other instances as well of oppression and mismanagement, the above list of dates has been extracted from the pleadings of the parties for our convenience to understand the events in the correct perspective and as to how the transactions have been perpetrated - in the present case, as notice of EOGM seems to have deliberately been sent to an address where the petitioners were not residing to the knowledge of the respondents thereby clearly showing the intent of the respondents being in majority to exclude the petitioners.
We are forced to come to a conclusion that the acts of the respondents in excluding the petitioners from the affairs of the company had been deliberate and willful and in the absence of notice or any evidence produced before us to sustain the plea of the participation of the petitioners or for that matter the petitioners were put on notice we are constrained to declare the Board Meeting held on 2.11.2010 and 10.12.2010 as well as the Extra-Ordinary General Meeting on 17.03.2011 were not held in accordance with law and as a consequence the agreement to sell is also required to be held as non-est in the eyes of law, however without prejudice to the rights of the third party, namely the 4th respondent from seeking appropriate remedy before the civil court as may be legally available to it.
The meeting of the Board of Directors held on 02.11.2010 and the resolutions passed there at appointing two executive directors were bad in law and the same are declared null and void - Application disposed off.
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2016 (12) TMI 1808
Whether the Company Law Board lacked authority in receiving the petition under Section 58 of the Companies Act, 2013 beyond the period prescribed in sub-section 4 thereof?
HELD THAT:- Under the provisions of Companies Act, 1956, the Company Law Board (CLB) is a Court in a restricted sense. Under Section 10E (4C) of the Companies Act, 1956, the CLB would have powers under the Code of Civil Procedure, 1908 (5 of 1908) only in respect of the matters specified in Section 10E (4C) (a) to (f) of the Companies Act. The Company Law Board is a quasi-judicial authority to be guided by the principles of natural justice in exercise of its power and discharge its functions under the Companies Act, 1956 and it shall act in its discretion - There cannot be any doubt that the provisions of Section 5 of the Limitation Act would only be applicable to the Courts and not to any Tribunal, Quasi-Judicial bodies including CLB unless such authorities are vested with the power of enlargement.
The very fact that an appeal is a continuation of proceedings and the order of CLB is subject to appeal and has not reached finality, therefore, no right appears to have been vested in the appellant in order to attract the mischief of affecting vested right, if there be any.
Application dismissed.
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2016 (12) TMI 1807
Maintainability of Company petition - Oppression and Mismanagement - Petitioners have not less than one tenth of shares - locus standi of petitioner to maintain the Company Petition - question to be decided by the Board for Financial Reconstruction - Jurisdiction - time limitation.
Whether the Petitioners have not less than one tenth of shares and thus have locus standi to maintain the Company Petition? - HELD THAT:- The Petitioners in the CP have propounded their case as members of the Company holding not less than one tenth of the paid up share capital as on the date of filing of the Company Petition and further contended that the Respondents have fraudulently and deliberately omitted to show the transfer of the shares in favour of the Petitioners' group in the Annual Returns. This is a question of fact. Further, the contention of the Applicants/Respondents that the Share Transfer Forms are not properly submitted and That transfer is not affected etc are the questions of fact to be decided in the enquiry in the Company Petition on merits.
For the purpose of maintainability of the Company Petition, therefore, it is sufficient to hold them eligible because the Petitioners have been issued share certificates, and the Meeting of Members and the Meeting of Board of Directors have approved the allotment of shares - There is no denial that the total number of shares thus decided to be transferred in favour of the Company Petitioners and also reflected in the share certificates issued to them is amounting to not less than one tenth of the paid up capital of the Company as on the date of filing of the Company Petition.
Whether the questions involved in the Company Petition have to be decided by the Board for Financial Reconstruction? If so the jurisdiction of this Tribunal is barred? - HELD THAT:- Evidently, the facts of the case on hand do not show that the disputes arose but of the orders of BIFR. The dispute before us is obviously different from the BIFR orders. Thereby, there cannot be any confusion in the minds of the stake holders of the draft scheme formulated and approved by the Board for seeking any clarification or further direction. As per the documents of the Petitioners, they have become share holders and therefore, any dispute between the shareholders and the company, in terms of minority and majority groups, while dealing with management of affairs of the company, would fall within the ambit of a dispute for resolution by the Tribunal only - the Company Petition is maintainable in this Tribunal for the reliefs claimed therein on the complaint of oppression and mismanagement.
Whether the Company Petition is barred by limitation, delay and latches? - HELD THAT:- Limitation, delay and latches are lot pure questions of law but they are mixed questions of fact and law which cannot be decided summarily in an application to dismiss the main proceedings on preliminary grounds.
The Company Application is devoid of merits and it is dismissed.
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2016 (12) TMI 1773
Oppression and mismanagement - non-implementation of the MOU dated 18.03.2009 and two addendums attached with it dated 13.03.2010 and 26.03.2010 - whether in the facts and circumstances of this case the dispute raised in the company petition filed u/s. 397, 398, 402 and 403 of the Companies Act could be referred to arbitration on the basis of identical reliefs having been claimed?
HELD THAT:- The law on the subject is fairly well settled - In the case of Sukanya Holdings Pvt. Ltd. v. Jayesh H. Pandya [2003 (4) TMI 435 - SUPREME COURT] Hon'ble the Supreme Court has, inter alia observed that The Court has to apply its mind to the condition contemplated under section 89 CPC and even if application under section 8 of the Act is rejected, the Court is required to follow the procedure prescribed under the said section.
The company petition is nothing else but a dressed up petition and is not covered by the provision of chapter 6 of the Companies Act, 1956. Merely by modifying the prayer or using different expression in various paras of the petition prefacing it with the allegations of 'oppression and mismanagement' a petition would not assume the character of a petition u/s. 397, 398 and 402 of the Companies Act - The arbitration proceedings are pending before the arbitrator and the matters concerning all the allegations based on MOU and the two addendums. The reliefs which have been claimed in the petition can be claimed and granted by the Arbitrator.
On the excuse and pretext of 'oppression and mismanagement' the petitioner cannot be given a colour of a dispute of 'oppression and mismanagement'. Therefore we do not find any substance in the arguments of the counsel for the non applicant-petitioner that the company petition is aimed at only preventing the 'oppression and mismanagement'.
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2016 (12) TMI 1747
Arbitration and Conciliation - Scope of amended provision - Interpretation of amendment to Section 36 by virtue of Section 26 of Act 3 of 2016 and applicability of Section 36 of Act, 1996 (pre-amended Act) - Held that:- When a specific language is used in the amended provisions of the Act and the intention of the legislature in incorporating such provision is to take away the right whatever accrued to the parties, such statutes can be interpreted without causing any violence, either by addition or by subtracting any words, to the language used in the statute, without frustrating the intention of the legislature considering the plaint language used in the amended Act.
In the present case, the arbitral proceedings commenced before the Council in the year 2008 and terminated on 21.06.2010 by passing an award by the Council. Hence, the proceedings in the present case were commenced and also terminated prior to the commencement of amended Act 3 of 2016.
It is clear from the language used in Section 85 (2) (a) of 1996 Act and Section 26 of Act 3 of 2016, the amended provisions are not applicable if the arbitral proceedings before the arbitral Tribunal commenced before the commencement of Act 3 of 2016 and pending before arbitral tribunal. If commenced and terminated before the commencement of Act 3 of 2016 the new provisions alone are applicable but not the old provisions. Consequently, section 36 of the old Act cannot be applied to the present facts since the right accrued to the petitioner i.e. deemed stay under Section 36 of the Act was taken away by virtue of amendment to Section 36 by its substitution read with Section 26 of the Act 3 of 2016.
Hence, the petitioner is not entitled to claim benefit under Section 36 of pre-amended Act, as such right was taken away by amendment to declaratory statute substituting new section in the place of old section.
On an over all analysis of the law laid down by various Courts and the principles of interpretation laid down by Court, the following conclusions are arrived (1) Section 26 of Act 3 of 2016 made it clear that the amended provisions shall not apply to all the pending arbitration proceedings commenced before 23.10.2015 and if the arbitration proceedings before the Arbitral Tribunal are terminated before the commencement of the Act, the provisions of new Act i.e. Act 3 of 2016 alone shall apply though any incidental or consequential proceedings are pending before objecting Court i.e. District Court or any other Court.
Award need not be transferred, on that ground the garnishee order cannot be set aside.
In view of the applicability of provisiosn of amended Act 3 of 2016 the remedy open to the petitioner is to file an application under Section 36 of the amended Act 3 of 2016 and on filing of such application, the objecting Court has to pass appropriate order subject to compliance of requirement of 75% under MSMED Act, 2006. Hence, leaving it open to the petitioner to move appropriate application before the objecting Court under Section 36 of the Act as amended by Act 3 of 2016. Thus find no ground to set aside the award pertaining to item Nos.26 to 45.
Consequently, filing of E.P. for the award in respect of item Nos.1 to 25 and garnishee order issued by the II Additional Chief Judge, City Civil Court, Hyderabad for recovery of amount covered by item Nos.1 to 25 is illegal since there is no executable award in view of the order of High Court of Punjab and Haryana. Consequently, the garnishee order to the extent of amount covered by item Nos.1 to 25 is hereby set aside while upholding the impugned garnishee order in respect of item Nos.26 to 45. Accordingly, the points are answered.
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2016 (12) TMI 1689
Petitioner seeks permission to withdrawn the Company Petition with liberty to file a fresh petition before the Company Law Tribunal.
Reserving such liberty, the Company Petition is dismissed as withdrawn.
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2016 (12) TMI 1661
Winding up petition transferred to NCLT - Held that:- In terms of the notification Regd. No. D.L.-33004/99 dated 7th December 2016, issued by the Ministry of Corporate Affairs and in particular, Clause 5 thereof, the present winding up petition under Sections 433 (e), 434 and 439 of the Companies Act, stands transferred to the Principal Bench, National Company Law Tribunal, New Delhi (hereinafter referred to as ‘NCLT’).
The Registry is directed to transmit the record of the present petition to the Principal Bench, NCLT, for further proceedings in accordance with law.
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2016 (12) TMI 1627
Winding up petition - non-payment of an amount of ₹ 34,93,918/-, despite service of notice of winding up on the registered office of the respondent-company - Held that:- Upon the petitioner taking all necessary steps for the service of the respondents herein within one week from today, issue notice to the latter to show cause as to why the present company petition be not admitted and the respondent-company be not wound up, returnable on 8th March, 2017.
In addition, the Managing Director or in his absence, all the Directors of the respondent company shall file their personal affidavits setting down all information and particulars with regard to their shareholding in the company, their involvement in the affairs of the company and the nature of steps taken by them with regard to the management of the company; The Profit & Loss Account and the Balance Sheets of the Respondent Company for the last three years, The list of the bank accounts of the Respondent Company, other relevant details regarding directors, assets held in the name of all the directors, location of the statutory records and books of account of the company, list of immovable assets, land and building etc. of the respondent company, along with full particulars thereof sufficient to accurately identify and locate the said assets, Details of the debtors and creditors of the company with their complete addresses and respondent company as well as its Directors shall disclose their connection with any other entities whether incorporated or not and the extent of their interest therein, with full particulars.
The said affidavits shall be filed within six weeks from today with an advance copy to counsel for the petitioner. In case the said affidavits are not filed for any reason, the concerned Directors, including the Managing Director of the respondent company shall remain personally present in Court on the next date of hearing, in order to enable this Court to examine them, if required, on that date.
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2016 (12) TMI 1606
Winding up - Inability to pay the admitted dues - attachment orders - Held that:- For the reasons stated in the order dated 28.11.2016 passed by this Court and in continuation of the same, in view of the fact that the respondent Company has reiterated its inability to pay the admitted dues of the petitioner, the following order is passed.
The Notice of the admission of the petition shall be advertised in the English daily newspaper “Business Standard”, Ahmedabad Edition and the Gujarati daily newspaper, “Jai Hind”, Ahmedabad Edition.
The Official Liquidator attached to this Court is appointed as the Provisional Liquidator of the respondent Company and directed to take over the charge and possession of the assets of the respondent Company and to prepare an inventory of the office premises, books of accounts and all other assets of the respondent Company, as required. Publication of the Notice in the Government Gazette is dispensed with.
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2016 (12) TMI 1604
Oppression and mismanagement - illegal & unlawful allotment of shares - EOGM was held without giving prior notice to the non applicant-petitioner - Dismissal of Company Petition on the ground of delay and laches - Held that:- Even in the absence of application of the provisions of Limitation Act, the petitioner cannot surmount the difficulty of delay and laches. It is well settled that when a member of a company files a petition under S. 397 and 398 read with S. 402(g) of the 1956 Act, he is necessarily invoking equitable jurisdiction of this Tribunal. S. 402 of the Act expressly provides that the Tribunal is empowered to pass any order which it considers just and equitable. Similar provision has been made by S. 403 of the Act vesting the Tribunal with the power to pass any interim order as it deems just and equitable. Similar provisions have now been made in S. 242(2) of 2013 Act. Therefore, from that point of view, the petition is liable to be dismissed as barred by delay and laches.
The allotment of share was made to the father of Respondent No. 3 Late Mr. Francis Wacziarg who is no more. It is not understood as to how the allotment could be effectively defended by his daughter who is impleaded as Respondent No. 3. The intervention of third party right is also a relevant factor for us to conclude that the petitioner had disentitled himself to claim any relief under the equitable jurisdiction, particularly, when the Tribunal has been assigned the role and status as that of the High Court (see the observation made in the case of Union of India v. R. Gandhi, President, Madras Bar Association (2010 (5) TMI 393 - SUPREME COURT OF INDIA).
We are also not impressed with the submission that the decline in payment of dividend on 22.03.2013 furnished the petitioner knowledge of its reduced share capital and clothed it with a cause of action because in the year 2006, 2009 and 2010 no dividend were paid. Again in the year 2012 the Respondent No. 1-company did not announce any dividend. If any foul play was to be apprehended then the petitioner should have set in motion the machinery of ventilating its grievances during those years. Moreover, the petitioner is not a member of gullible public but is a private limited company which is ordinarily assisted by competent professionals like company secretaries and chartered accountants. Therefore it is not believable that they had no knowledge of various events taking place in the Respondent No. 1-company starting from the year 2007 to 2011. Therefore we are unable to persuade ourselves to accept aforesaid submissions for commencement of the period of limitation w.e.f 22.03.2013.
Whether once mandatory provision of law is infringed then irrespective of question of delay, the invalidity cannot be allowed to continue? - There is no rule of law that a void order challenged at any time without requirement of complying with the principles covering delay and laches and can thus be ignored. In other words a void and unlawful order does not attract any period of limitation. In the case of State of Punjab v. Gurdev Singh (1991 (8) TMI 328 - SUPREME COURT)it has been led out by Hon'ble the Supreme Court that even void and illegal order have be challenged within the period of limitation. Therefore we are unable to persuade ourselves to accept the submissions made by Mr. Vasisht. Thus petition fails
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2016 (12) TMI 1565
Money lending - loans advanced at a rate of interest beyond the prescribed limit - Held that:- Loan cum Hypothecation Agreement, Letter of Continuity, Promissory Note, Registration Book of each of such customers have been relied upon by the Inspector to support his case and to show that the amount of money advances is a loan and therefore the company, a company registered under the Companies Act,1956 is a company advancing loans for vehicles and operating without a license. Application for a license was made on 4/7/2007 and subsequently withdrawn on 27/8/2007. The complaint therefore states that no fresh license has therefore been issued to the Company. Nothing has been stated in the application to dispute this fact in the complaint.
All these transactions are, therefore, loans advanced at a rate of interest beyond the prescribed limit under the Act making the Company responsible for the breach of the provisions of the Money Lending Act.
Accordingly the application seeking a prayer to quash the Criminal Complaint being Criminal Case filed before the Court of the Metropolitan Magistrate, Court No. 20, Ahmedabad is not entertained and the prayer to seek quashing of the same is rejected. Application accordingly stands rejected. Rule is discharged.
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2016 (12) TMI 1564
Scheme of amalgamation - Held that:- As nothing prejudicial to the interest of creditors, members of both transferor companies and the transferee company or to public interest. All required procedures had been followed.
Consequently, the company petition is allowed. This court does hereby sanction the amended scheme of amalgamation and does hereby declare the same to be binding on creditors and equity shareholders of transferor companies and the transferee company.
The parties to the amalgamation or other persons interested shall be at liberty to apply to this court for any directions that may be necessary in regard to the working of the amalgamation.
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2016 (12) TMI 1563
Scheme of Amalgamation - Held that:- On the consideration of all the relevant facts, the procedural requirements contemplated under Sections 391-394 of the Act, the relevant Rules and on due consideration of the report of the Regional Director, Northern, Ministry of Corporate Affairs, New Delhi, the Composite Scheme of Arrangement is hereby sanctioned and as a result thereof, the assets and liabilities relating to Amalgamating Company No.1 & 2 shall stand vested in the Amalgamated/De-merged company and the Amalgamating Company No.1 & 2 shall be dissolved without being wound up, the assets and liabilities relating to “Demerged Undertaking i.e. Jim Corbett Undertaking” of Amalgamated/Demerged Company shall stand vested in the Resulting Company No.1 and the assets and liabilities relating to “Demerged Undertaking i.e. J.R. Recreation Undertaking” of Amalgamated/Demerged Company shall stand vested in Resulting Company No.2. The Petitioner-Companies shall comply with all the applicable Accounting Standards upon sanctioning of the Scheme.
The Scheme shall be binding on the Petitioner-Companies, their respective shareholders, creditors and all concerned.
Let formal order of sanction of the Scheme be drawn in accordance with law and its certified copy be filed with the Registrar of Companies within 30 days from the date of receipt of the same.
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2016 (12) TMI 1562
Sanction of the Scheme of Amalgamation - Held that:- On due consideration of the report of the Regional Director, Northern Region, Ministry of Corporate Affairs, New Delhi and the Official Liquidator, the Scheme of Amalgamation is hereby sanctioned and as a result thereof, all the assets and liabilities of the Transferor Company shall stand vested in the Transferee Company and the Transferor Company shall be dissolved without being wound up.
The Scheme of Amalgamation shall be binding on both the Transferor and Transferee Company, their respective shareholders, creditors and all concerned.
Let a formal order of sanction of the Scheme of Amalgamation be drawn in accordance with law and its certified copy be filed with the Registrar of Companies within 30 days from the date of receipt of the same.
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