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Companies Law - Case Laws
Showing 1 to 20 of 571 Records
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2017 (12) TMI 1877 - NATIONAL COMPANY LAW TRIBUNAL MUMBAI BENCH
Sanction of Amalgamation Scheme - Sections 230 to 232 of the Companies Act, 2013 - HELD THAT:- From the material on record, the Scheme appears to be fair and reasonable and is not in violation of any provisions of law and is not contrary to public policy. None of the parties concerned have come forward to oppose the Scheme.
Since all the requisite statutory compliances have been fulfilled, Company Scheme filed by the Transferor and Transferee Company are made absolute in terms of prayer clause of the petition - The Petitioner Companies to pay costs of Rs. 25,000/- each to the Regional Director, Western Region, Mumbai. Transferor Company to pay cost of Rs. 25,000/- to the Official Liquidator, High Court, Bombay.
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2017 (12) TMI 1874 - CALCUTTA HIGH COURT
Maintainability of appeal - petitioners apprehend that, the Appellate Authority will disallow the appeal as the Appellate Authority has expressed its mind in course of the hearing as recorded in a writing issued by the Advocate for the petitioner - HELD THAT:- In the facts of the present case, the decision of the Appellate Authority is awaited. The submissions made on behalf of the petitioners as the observations of the Appellate Authority as perceived by the petitioners are yet to be reduced in writing by the Appellate Authority. The decision of the Appellate Authority will appear from the communication of such decision. It is premature to speculate on the submissions and the observations made in the course of hearing of the appeal.
There are no merit to interfere in the present writ petition - petition dismissed.
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2017 (12) TMI 1871 - SUPREME COURT
Condonation of delay in filing appeal - appeal lodged on 8th June, 2017 to be considered to be within the extended 45 days period or not - HELD THAT:- On the facts of the present case, it is clear that within a period of seven days, the defect pointed out was cured. This being the case, it is clear that the initial date of lodgement of the appeal is the date on which the appeal should be considered as filed, even though an appeal number may be given to the appeal subsequently.
The NCLAT's judgment deserves to be set aside, and the appeal that was lodged on 8th June, 2017 must be considered to be within the extended 45 days period.
The NCLAT has also noticed that no sufficient cause was made out to condone the delay that falls within the second 45 days period. This is incorrect inasmuch as the appellant has pleaded that as a result of the death of his uncle, the appellant was unable to process the appeal within the initial 45 days and that, therefore, he should be said to have made out sufficient cause to condone the delay of 42 days.
Appeal allowed.
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2017 (12) TMI 1863 - DELHI HIGH COURT
Seeking winding up of the respondent company - respondent company is unable to pay its debts - Sections 433(E) and 434 (1)(A) of the Companies Act, 1956 - HELD THAT:- The petition is admitted and the Official Liquidator attached to this Court is appointed as the Provisional Liquidator. He is directed to take over all the assets, books of accounts and records of the respondent-company forthwith. The citations be published in the Delhi editions of the newspapers ‘Statesman’ (English) and ‘Veer Arjun’ (Hindi), as well as in the Delhi Gazette, at least 14 days prior to the next date of hearing. The cost of publication is to be borne by the petitioner who shall deposit a sum Rs.75,000/- with the Official Liquidator within 2 weeks, subject to any further amounts that may be called for by the liquidator for this purpose, if required - The Official Liquidator shall also endeavour to prepare a complete inventory of all the assets of the respondent-company when the same are taken over; and the premises in which they are kept shall be sealed by him.
List on 20.04.2018.
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2017 (12) TMI 1835 - ALLAHABAD HIGH COURT
Rejection of rate of interest - one time settlement - HELD THAT:- The petitioner Company was allotted a commercial plot in the year 2008 being the highest bidder therefor. Initially, an allotment order was issued in favour of the petitioner Company on 11.4.2008, but later on, there was some variation in the land size and consequently, another allotment order dated 2.12.2009 was issued. Thereunder, the petitioner Company was liable to pay 50% of the amount in four interest free installments and the remaining 50% in 72 monthly installments alongwith interest at the rate of 18% per annum and in case of default in payment of the installments, additional interest at the rate of 24% as penal interest.
This Court dismissed the writ petition by order dated 21.6.2016 not only on the ground that the petitioners have failed to comply with the order dated 29.1.2013 passed in the first writ petition, but also because the Court found that the Advocate of the petitioners made an incorrect statement before the Court and tried to mislead it. This Court, while granting liberty to the petitioners to raise grievance, if any, in regard to the rate of interest by filing suit or by approaching such forum as may be available to them, did not mean that the petitioners would re-agitate the matter before this Court, once again, under the garb of certain communication received from U.P. Awas Evam Vikas Parishad intimating the petitioners that the amount determined under the OTS scheme is wholly justified and it is not possible to accept its objection regarding rate of interest.
Petition dismissed.
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2017 (12) TMI 1812 - DELHI HIGH COURT
Seeking direction for completion of entire procedure as required under Rule 9 of the Chartered Accountants (Procedure of Investigations of Professional and Other Misconduct and Conduct of Cases) Rules, 2007 within a maximum period of 14 weeks - HELD THAT:- Apparently, the petitioner had filed a writ petition in respect of another complaint which had been pending enquiry for a considerable period time - Admittedly, there were considerable delays in processing the petitioner’s complaint in that case. However, no such grievance can be made by the petitioner in the facts of the present case, where the Director (Discipline) has already completed the process of examining the petitioner’s complaint.
This Court is of the view that the present petition is unmerited and wholly unjustified. This court is also of the view that such frivolous petitions ought to be discouraged - Petition dismissed with cost quantified at ₹10,000/-.
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2017 (12) TMI 1778 - BOMBAY HIGH COURT
Custody and transportation of Metro Rails which are manufactured by EVRAZ East Metals AG - HELD THAT:- Defendant RRC agree and undertake that 3278.7 MT (18 Meter rails) and 253.14 MT (25 Meter Metro Rails) of Metro rails presently lying with them in their warehouse (in good condition) would be given delivery of to the Plaintiff LSI. Defendant RRC states that 250.35 MT of 18 meter Metro Rails are in transit from Mumbai to Nagpur and will reach MAHA METRO site in Nagpur within 7 days from today. Upon such delivery, RRC will hand over to LSI the MAHA METRO delivery receipt for the said 250.35 MT rails. Defendant RRC agree and undertake to handover 15 clamps as specified in the contract.
The matters will be taken up for hearing on 15th January, 2018 when this Court will consider all claims, contentions and submissions of all parties, inter alia, including on the following issues –
a. Whether any security should be furnished for the amounts claimed by RRC?
b. Which party should furnish the security, if any?
c. What is the amount for which the security should be furnished?
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2017 (12) TMI 1776 - NATIONAL COMPANY LAW TRIBUNAL, MUMBAI
Sanction of Scheme of Amalgamation - Sections 230 to 232 and Section 234 of the Companies Act, 2013 - HELD THAT:- From the material on record, the Scheme appears to be fair and reasonable and is not in violation of any provisions of law and is not contrary to public policy. None of the parties concerned have come forward to oppose the Scheme - Since all the requisite statutory compliances have been fulfilled, Company Scheme Petition No. 1075 of 2017 filed by the Petitioner Companies are made absolute in terms of prayer clause (a) of the Petition.
The Petitioner Companies to lodge a copy of this order and the Scheme duly authenticated by the Deputy Director or Assistant Registrar, National Company Law Tribunal, Mumbai Bench, with the concerned Superintendent of Stamps for the purpose of adjudication of stamp duty payable, if any, on the same within 60 days from the date of receipt of the order - Petitioner Companies are directed to file a copy of this order along with a copy of the Scheme duly certified by the Deputy Director or Assistant Registrar, National Company Law Tribunal, Mumbai Bench with the concerned Registrar of companies, electronically, along with E-form INC 28 within 30 days from the date of issuance of the order by the Registry.
The Petitioner Companies to pay costs of ₹ 25,000/- each to the Regional Director, Western Region, Mumbai. Transferor Company 3 & 4 (First and Second Petitioner Company above to pay cost of ₹ 25,000/- to the Official Liquidator, High Court, Bombay - The costs to be paid within four weeks from the date of receipt of Order.
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2017 (12) TMI 1775 - NATIONAL COMPANY LAW TRIBUNAL, MUMBAI
Dispensation with convention of meeting of the Equity Shareholders of the Petitioner Company - Petitioners submits that the Company Petition is filed in consonance with section 230 to 232 read with Section 234 of the Companies Act, 2013 along with the Order passed in Company Scheme Application No. 915 of 2017 by the Tribunal - HELD THAT:- At least 10 clear days before the date fixed for hearing, Petitioner Companies to publish the notice of hearing of the Petition in two local newspapers viz "Free Press Journal" in English and "Navshakti" in Marathi, both circulated in Mumbai.
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2017 (12) TMI 1770 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Appointment of original respondent No. 3 as director - allotment of shares - appellants criticised the impugned judgment of the National Company Law Tribunal and stated that the finding that resolution dated October 8, 2013 is invalid is wrong - HELD THAT:- The notice had been issued to the petitioner regarding the meeting to be held on December 7, 2016 and he submitted detailed comments which the board of directors considered and discarded. There was then further meeting on December 26, 2016 the petitioner filed I.A. No. 38 of 2016 in the National Company Law Tribunal, but he did not participate in the meetings. The board of directors took decision considering the affairs of the company to tide over their financial difficulties and if that was done, the same could not have been set aside merely by observing that there was no justification for the acts of the respondents or that there was undue haste. The justification is borne out from the minutes of these meetings - When procedure is followed and steps taken, the acts could not have been questioned branding them as undue haste. Such considerations of the board cannot be found fault with being matters of company affairs. If the petitioner had difficulty, he should have participated in the meetings to say whatever he wanted. In the facts of present matter, we find ourselves unable to agree with the learned National Company Law Tribunal.
When the National Company Law Tribunal could not record finding of oppression or mismanagement and there was material to show that the petitioner had not come with clean hands, it was not open for the learned National Company Law Tribunal to still go on to set aside the appointment of respondent No. 3 and set aside shares issued as per the resolution passed on December 26, 2016 or give direction that the respondents will purchase the shares of the petitioner. For the above reasons, the appeal is allowed.
The impugned order of the National Company Law Tribunal is quashed and set aside - petition dismissed.
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2017 (12) TMI 1725 - BOMBAY HIGH COURT
Winding up of respondent company - inability to pay its debts and declared commercially insolvent - main argument of respondent was that meetings of Joint Lender's Forum had taken place in which there were many lenders who were not in favour of winding up, whereas there were many other lenders who were in favour of winding up - HELD THAT:- After the petition was admitted, no new affidavit of reply has been filed opposing the winding up of the company. Today also there is nobody present for respondent company. Petitioner has also filed an affidavit of one Digambar Khadye affirmed on 2nd August, 2017 to which are annexed copies of newspaper cuttings advertising admission of petition and also a copy of the gazette notification advertising admission of petition. At the time of admission, service of petition under Rule 28 of the Companies (Court) Rules, 1959 has been waived.
While admitting the petition in paragraph 56, it is quite obvious that the company is unable to pay its debts, is commercially insolvent and deserves to be wound up. Therefore, the petition is allowed.
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2017 (12) TMI 1701 - NATIONAL COMPANY LAW TRIBUNAL, CHENNAI
Restoration of the name of the Applicant Company to the Register of Companies - HELD THAT:- It is an admitted fact that the Company did not file its Annual Accounts and Annual Returns with effect from the Financial Year ending 2000-01 onwards till date due to which it has been "struck off' from the Register of the Companies during 2005, as the show cause notice was given on 20th of July, 2005 as contemplated under Section 560(1) of the 1956. There is no plausible Companies Act, explanation provided in the Application for non-filing of the Annual Accounts and Annual Returns with effect from 2000-01 onwards till date. It has also been admitted by the PCS during the hearing that the Company is not currently engaged in any business, it has only a plot of land. Therefore, a shell/ defunct company cannot be ordered to be restored.
This Bench is not satisfied to order the restoration of the name of the Company to the Register of Companies maintained by the concerned Registrar of Companies. Accordingly, the Company Application stands rejected.
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2017 (12) TMI 1700 - NATIONAL COMPANY LAW TRIBUNAL, HYDERABAD BENCH
Oppression and Mismanagement - it was alleged that the petitioner is interfering in the Company affairs along with his wife so as to cripple the Company - HELD THAT:- The shareholding of the Petitioner was not at all affected but in order to set right the affairs of Company, which is at crucial stage, the petitioner was removed from the position Of MD and Director in accordance with law. As rightly pointed out by the respondents, when Company itself has not started its operations as per its object as mentioned in its memo and all funding of the Company is met through sources of family of second respondent, the question of oppression and mismanagement in the affairs of Company, even to examine, is too premature.
The petitioner's interest is not too much adversely affected especially being a minority share holders and the mother is head of family. The petitioner is legally and morally bound by the decisions taken by the second respondent, who is mother Of petitioner and Chairperson also. The petitioner has also failed to establish any ingredients as prescribed under Sections 241 to 244 of Companies Act, 2013 so as to interfere in the affairs of the Company. However, the petitioner still holders of 13 % of Shares of the Company, is entitled for due notice for any ensuing meetings of the Company, and the Company should follow principles of natural justice, in conducting any future meetings/taking any decision(s).
The petitioner failed to make out any case so as to interfere in the affairs of the Company - petition dismissed.
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2017 (12) TMI 1662 - NATIONAL COMPANY LAW TRIBUNAL, CHENNAI
Oppression and mismanagement - Legality of allotment of shares - Board Meetings held without quorum - Whether the allotment of shares i.e. 5,05,000 in favour of Respondent Nos.2 and 3 in the Board Meetings purportedly held on 25.04.2008 and 11.08.2010 is legal and valid? - Whether the continuance of Respondent 3, viz., Mrs. Bindu Paul as a Director of 1st Respondent company is legal and valid? - Whether the appointment of 4th Respondent as a Director of the 1st Respondent company purportedly made on 27.1.2011 is legal and valid? - HELD THAT:- It is settled legal position that if further issue of shares results in conversion of majority into a minority, or creation of new majority, then, such issue of shares is not only in breach of fiduciary responsibilities but also a grave act of oppression against the existing majority. Therefore, the allotment of shares impugned in the Company Petition which have been made without proper service of notice with a view to gain advantage against the Petitioners being the majority shareholders of the closely held company is in breach of fiduciary obligation of the Directors which is neither in compliance with the legal requirements nor ensures the fair play and probity in corporate management. Thus, it amounts to an act of gross oppression. In view of this, the allotments made on 25.04.2008 and 11.08.2010 of 505000 shares to Respondent Nos. 2 and 3 is illegal.
Board Meetings held without quorum as required by the Articles of Association of the 1st Respondent Company are bad in law and the appointments of additional Directors at such Board Meeting was also bad in law, as that failed to satisfy the test required by law as has been laid down in Murari Mohan's case [2015 (7) TMI 298 - COMPANY LAW BOARD]
The allotments of shares i.e. 5,05,000 in favour of the Respondent Nos. 2 and 3 made on 25.04.2008 and 11.08.2010 are declared illegal, and the same stand set aside.
The Board Meetings purportedly held on 25.04.2008 and 11.08.2010 are not tenable in the eye of law, the same are declared as illegal, and all decisions taken there at are set aside.
The EoGMs dated 22.01.2011 and rights offer dated 01.02.2011 are declared illegal, null and void and hence, are set aside.
The continuance of Respondent No. 3 and appointment of Respondent No.4 are declared as illegal, null and void, and hence, set aside.
The 1st Petitioner is appointed as Managing Director of 1st Respondent Company and Mr. K. J. Paul is removed from the position of Managing Director, but he shall perform the duties as Director of the 1st Respondent Company. Consequently, the said Board of Directors is directed to rectify the Register of Members by restoring the shareholding pattern as on 30.09.2005 as shown under para 6(a) of the Petition.
As proposed to appoint an independent Auditor within three weeks of passing this Order, with the consensus of the Board of Directors comprising of 1st Petitioner and the 2nd Respondent, failing which, this Bench on mention by any of the Directors, shall appoint the independent Auditor out of the names, if suggested, by the parties, who (Independent Auditor) shall determine the true and fair value of the shares of 1st Respondent Company by taking into consideration three Financial Years w.e.f. 2011 onwards.
Based on the said value, and keeping in view the shareholding pattern as on 30.09.2005, the first opportunity for purchase of shares of Respondents is given to Petitioner, failing which the Respondents shall purchase the shares of the Petitioner. This process shall commence after the submission of the report of the independent Auditor, who shall submit the same within four weeks from the date of his appointment, and shall get completed within the twelve weeks thereafter. Till this process is completed, there shall not be any change in the composition of the Board constituted by this Bench, and shareholding pattern shall remain the same as on 30.09.2005. The fee of the independent Auditor shall be paid by the 1st Respondent Company which shall be fixed as per mutually agree of terms
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2017 (12) TMI 1643 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Scheme of Amalgamation - Tribunal discretion to reject the amalgamation - Held that:- The Tribunal below has enough expertise to look into the Scheme of Amalgamation and can also see whether it is not just and fair to all shareholders. It has a duty to act in public interest. In the matter of company, it needs to see if it is in the interest of all the shareholders and the company.
In the light of this it is desirable not to look into the mathematical details but a broad look at the scheme of amalgamation. If it shows that there are wide variation in the valuation as can be achieved, it will be desirable that expertise available in the Tribunal has to look so that unfair advantage does not flow to one of the group of shareholders or the other.
We are noting in this case that the net worth as reported by the Tribunal below is ₹ 22.32 lakhs and the valuation at ₹ 5.05 crores is having a considerable variation making it imperative to have a broad look into it. The look by the Tribunal into the issue may not be looking into too much mathematics of the scheme and may be in the best interest and protection of the stakeholders. After noticing the same the Tribunal has come to the conclusion that the Scheme of amalgamation is beneficial to the promoters only. The Tribunal has justified its discretion to reject the amalgamation. We do not find mitigating factors to differ with the same.
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2017 (12) TMI 1640 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Oppression and mismanagement - increase in share capital - Held that:- In the Board Meeting held on 22nd June, 2015, the Petitioner was given minutes of the meeting of the Board of Directors of the 1st Respondent Company held on 1st September, 2014, statement of Profit and Loss Account, Balance Sheet and Cash Flow Statements for the year ended 31st March, 2015 without notes. Apart from the said documents, there is no material placed on records by the Respondents to suggest that before 22nd June, 2015, the Petitioner had knowledge about the increase in share capital.
Increase in the share capital from ₹ 1 lac to ₹ 2 lacs of the 1st Respondent Company that took place on 21st December, 2009 and from ₹ 2 lacs to ₹ 3 lacs on 28th September, 2010 as illegal and set aside the allotment of 2500 shares to 4th Respondent on 29th January, 2010 and to the 5th Respondent to 11th Respondent on 18th January, 2011 and allotment of 2500 shares to 11th Respondent on 4th July, 2013 has been also declared illegal and set aside.
Apart from that, the transfer of shares of 1st Respondent to 2nd Respondent having set aside in addition to order for the allotment of shareholders of the shares of the 12th Respondent by duly following the procedures laid down under the Companies Act and Articles of Association, no interference is called for. We are of the view that apart from the just and proper order passed by the Tribunal, it has also passed consequential reliefs of setting aside illegal allotment and therefore, no further relief can be granted to the Petitioner.
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2017 (12) TMI 1605 - NATIONAL COMPANY LAW TRIBUNAL, NEW DELHI
Reconvening of meeting of Secured Creditors of the Applicant Company No. 1 - Held that:- As seen from the averments made in the Application as also the report of the independent Chairperson appointed to chair the meeting, that the Applicants had complied with the directions of this Tribunal in calling the meeting as well as in relation to the convening of the said meeting of Secured Creditors by Applicant Company No. l on the date fixed by this Tribunal.
In view of the absence of any Secured Creditors, the meeting was not able to be held. It is also evident from the report of the Chairperson dated 24.11.2017 as well as averred in the Application that Small Industrial Development Bank of India being one of the Secured Creditors in relation to Applicant Company No. 1 had sent its representative, however, subsequent to the time prescribed for holding the meeting. It is also further stated that the representative of SIDBI did not have proper authorization to attend the meeting. Thus, it is seen that the holding of meeting has not occasioned due to the fault of the Applicants in complying with the directions of this Tribunal on 6.10.2017 but on the other hand due to reasons beyond its control.
Reference to the provisions of Companies Act, 2013 read with Companies (Arrangement and Amalgamation) Rules, 2016 more particularly Rule 24 of the Rules as well as taking into consideration the inherent powers as vested with this Tribunal by virtue of Rule 11 of NCLT Rules, 2016 and as no prejudice will be caused to any party if the meeting is directed to be reconvened, as it will only enable the secured creditors to express their assent or dissent to the proposed Scheme, this Tribunal orders for a reconvening of the meeting of the Secured Creditors of Applicant Company No. 1
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2017 (12) TMI 1598 - NATIONAL COMPANY LAW TRIBUNAL HYDERABAD BENCH AT HYDERABAD
Violation of the provisions of the Companies Act, 2013 - Offer and allotment of share - Respondents had increased their personal shareholding on 30-09-2015 and 26-11-2016 in a manner prejudicial to the interest of the petitioner and the 1st Respondent Company - Removal of directors - Held that:- As not given effect to till date due the case is pending before this Tribunal and then before Hon'ble NCLAT. Again a notice dated 10th April, 2017 was issued proposing to conduct a meeting of Board of Directors of the Company to be held on 22nd April, 2017 at 10.00. The petitioner, while accepting the receipt of said notice on 13.4.17, has addressed a letter dated 15th April, 17 by interalia requesting to defer it to a later date since the matter is sub-judice. It is stated by the Company that proceedings for removal of petitioner are kept pending since the matter is sub-judice. Since the Hon'ble NCLAT, vide its order dated 6.11.17 has interalia directed as not to give effect to resolution on the issue till the disposal of case, now the Company is free to take appropriate decision in accordance with law duly following principles of natural justice.
It is also relevant to point out here that the petitioner being whole time Director, and in receipt of remuneration from the Company along with other directors, cannot plead ignorance of affairs of the Company. The petitioner is yet to be removed from the position of Director. As per section 166 of Companies Act, 2013, a Director of a Company, subject to provisions of the Act, shall act in accordance with articles of the Company and shall act in good faith in order to promote the objects of Company for the benefit of its members as a whole and in the best interest of Company, its employees, shareholders, shall exercise her duties with due and reasonable care, skill and diligence etc. The conduct of petitioner being promoter Director, Whole Time Director taking huge remuneration as stated supra, not only failed in her statutory duties as assigned to her but also resorting to all sorts of baseless allegations against the Company and filing cases before the Tribunal - petitioner has failed to make out any case so as to interfere in the matter by the Tribunal, and thus it is liable to be dismissed
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2017 (12) TMI 1553 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Shri Ahsan Ahmad, accepts notice on behalf of the respondent. No further notice need be issued on him. He may file reply by 13th December, 2017.
Post the matter on 14th December, 2017.
In the meantime, the respondent – Resolution Professional will take into consideration the claim of the appellant and request the Committee of Creditors to notice the same and will bring it to the notice of Adjudicating Authority.
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2017 (12) TMI 1549 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Let notice be issued on Respondent- M/s. ANG Auto Tech Pvt. Ltd. through 'Interim Resolution Professional' as to why the 'Corporate Debtor' be not directed to pay the current dues of Appellant, which the Appellant is entitled from the date of moratorium. Requisite along with process fee, if not filed, be filed by 5th December, 2017. If the Appellant provides the e-mail address of Respondent, let notice be also issued through e-mail.
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