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2018 (3) TMI 2024
Disqualification of Directors - respective Company was also struck off from the role of the Registrar of Companies.
The present grievance of the petitioners before this Court is that these petitioners even after obtaining the interim order of stay of disqualification from this Court, are not in a position to utilise the opportunity given in the said Scheme, since the very Company, in which they were holding such position, was also struck off and therefore, the DIN Number of the respective petitioners is not activated.
HELD THAT:- Considering the fact that the cases pending before this Court filed under the same set of facts and circumstances are also to be heard and decided finally, after filing of the individual counter in each cases by the respondents, this Court is of the considered view that as an interim measure, the order passed by the Division Bench of the Delhi High Court is to be applied to the present cases as well so that a uniformity will be maintained among the equals.
Since this Court has entertained several writ petitions arising out of the same set of facts and granted interim order of stay and since all those writ petitions are not listed today, the following order will cover not only these petitioners and also the other petitioners, who have filed similar writ petitions before this Court, which are pending with interim orders granted therein.
The respondents are directed to forthwith activate the DIN number of each writ petitioner in whose favour, the interim order of stay has been granted by this Court.
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2018 (3) TMI 1927
Disqualification as directors under Section 164(2) of the Companies Act, 2013 - non filing of financial statements and annual returns by the respective companies of which they are directors for the consecutive period of three years - Notification dated 7th September 2017 - HELD THAT:- The undertaking given by the learned Counsel for the petitioners as was given in the disposed of petitions (paragraphs 8 and 9) would operate in these petitions also. By adopting the reasoning of the Court in the said order, these petitions are disposed off on identical lines - The petitioners to take immediate steps in consonance with the provisions under Section 248(2) of the said Act, 2013 and under the CODS2018, in any case within a period of ten days from today.
In order to facilitate this exercise, the operation of the impugned list, in so far as it concerns the petitioners, will remain stayed till 31/3/2018 or till such time the respondents take requisite decision with regard to the request of the petitioners made to them in consonance with the provisions under Section 248(2) of the said Act, 2013 and under the CODS 2018.
Petition disposed off.
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2018 (3) TMI 1892
Winding up of Respondent Company - failure to comply with section 9 of IBC - non-compliance with Section 9(5)(ii)(a) of IBC - HELD THAT:- In pursuance to transfer of the case to this Tribunal, the Petitioner is required to comply with the provisions of Section 9(3)(a) to (c) of IBC. Hon'ble NCLAT has consistently held including the one rendered in Company Appeal Uttam Galva steel limited v. GF Feutsche Fortair AG [2017 (8) TMI 1198 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI], that all the provisions are mandatorily required to be complied with by the Operational Creditor in order to maintain the petition before this Tribunal against the Corporate Debtor under the provisions of IBC, 2016. In view of lack of compliance of the mandatory provisions.
As stated by the respondents that it is not insolvent Company and it is earn profits earned profit for the year 2017. The amount claimed by the petitioner also clearly disputed by the respondents. The amounts claimed is ₹ 68,94,997/- are inflated invoices raised by the Petitioner, of which the Liquidated Damages payable by the Petitioner amounting to ₹ 12,75,850/- inflated billing in the invoices raised by the Petitioner amounting to ₹ 15,59,341/- and an amount of ₹ 40,59,806/- was deducted and adjusted as a result of breach of contract and no amount is due or payable to petitioner. Therefore, it is clear case of disputes the Adjudicating Authority cannot enter into roving enquiry when the amount is not specific. And also the petitioner has not complied all procedures prescribed under the provisions of IBC, 2016, after transfer the case from the High court of AP.
Therefore, instead of examining several disputed questions with regard to amount in question, and in complying with procedures prescribed under IBC, 2016, after transfer the case from High court, it would be in the interest of justice to dispose of the case, with a liberty to the petitioner to file a fresh in accordance with provisions of IBC, 2016. And it is not a fit case to admit - petition dismissed.
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2018 (3) TMI 1871
Sale of the vessel Sangita owned by the company in liquidation - HELD THAT:- The amount to be deposited by M/s. Vedant Ship Management shall be invested by the Official Liquidator in a Fixed Deposit of a Nationalized Bank. No amount shall be disbursed without seeking appropriate orders from the Court. The charges of the vessel including all port charges up to date shall be to the Official Liquidator's account and shall be paid from out of the sale proceeds. It is clarified that all claims against the sale proceeds of the vessel including maritime liens and claims shall be considered by the Official Liquidator in accordance with the applicable law of priority of claims.
The charges receivable by the port authorities in respect of the vessel shall be recovered from the Official Liquidator. The Port authorities shall not hold up the delivery of the vessel to the purchaser for nonpayment of these charges - Application disposed off.
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2018 (3) TMI 1870
Permission to sell three tugs - respondent under liquidation - exercise of rights under Section 51 of the Merchant Shipping Act, 1958 - HELD THAT:- The Company Application to come up for hearing on 28 March 2018.
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2018 (3) TMI 1835
Commercial Arbitration Petition - parties have tendered Consent Terms and submit that the Consent Terms be taken on record and the above Arbitration Petition be disposed off in terms of Consent Terms - HELD THAT:- The Consent Terms are taken on record and marked 'X' for identification. The Consent Terms are signed by the Petitioner No.1 for self and on behalf of Petitioner No.2. The Consent Terms are also signed by the Respondent. The Consent Terms are also signed by the respective Advocates for the parties. The undertakings recorded in the Consent Terms are accepted. The above Commercial Arbitration Petition is disposed off in terms of Consent Terms marked 'X'.
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2018 (3) TMI 1811
Debt Resolution Plan - It is argued by the learned Senior counsel for the petitioner that no such resolution has been made by the Bank - HELD THAT:- This Court finds that an arguable case appears in favour of the petitioner and if notice is not issued and an appropriate order of interim protection is not granted, the petitioners unit will be taken over as per the provisions of Sections 16 and 17 of the Insolvency and Bankruptcy Code, 2016. It is also not disputed that a proceeding has been initiated under Section 10 of the aforesaid Code.
Issue notice to the opposite parties by Speed Post, making it returnable within a period of three weeks, indicating that the matter shall be disposed of at the stage of admission - List this matter on 12.4.2018.
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2018 (3) TMI 1805
Condonation of Delay Scheme -2018 - Restoration of name of from the Register of Companies - applicability of decision in the case of Sandeep Singh & Anr. v. Registrar of Companies & Ors [2018 (3) TMI 560 - DELHI HIGH COURT] where it was held that It is clarified that if the petitioners do not avail of the CODS-2018 or file the necessary documents as required for dissolution for the Company under Section 248(2) as stated above; in addition to other consequences, the petitioners would also be liable to be prosecuted for contempt of Court.
HELD THAT:- This petition can be disposed of with the direction that respondents will follow the directives contained in Sandeep Singh. It is made clear that the directives contained therein will apply to the petitioner mutatis mutandis.
The petitioners will, however, take steps both in consonance with the provisions of Section 248 (2) of the Companies Act, 2013 and under the Condonation of Delay Scheme, 2018 within a period of ten days from today.
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2018 (3) TMI 1800
Disqualification as directors - non filing of financial statements and annual returns by the respective companies of which they are directors for the consecutive period of three years - Section 164 (2) of the Companies Act, 2013 - entitlement for availing the benefit of CODS 2018 - HELD THAT:- Though several contentions have been raised challenging the impugned order of disqualification as a director but during the course of the arguments learned Counsel appearing for the petitioners have prayed that they will be satisfied in case this Court is willing to accept their contention about their entitlement for availing the benefit of CODS2018. In this view of the matter we are not going into the matter of disqualification. All contentions thereto are kept open.
Learned ASG has pointed out that the appeals against the order passed by the learned Single Judge of the Delhi High Court are pending. It is, however, pointed out that the operation of the order passed by the Delhi High Court has not been stayed. It is stated across the bar that in fact the order passed by the Delhi High Court is already implemented in several cases.
The petitioners to take immediate steps in consonance with the provisions under Section 248(2) of the said Act, 2013 and under the CODS2018, in any case within a period of seven days from today.
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2018 (3) TMI 1798
Restoration of name in the register of Registrar of Companies - name was struck off on the ground that the assessee has not filed the return of its income for the year 2010-11 even though the assessee Company has received the amount and that Ld. Assessing Officer has reasons to believe that income has escaped assessment - HELD THAT:- It is seen in the instant case that the Income Tax Department is yet to quantify the tax demand in relation to the Company whose name has been struck off and dissolved based upon the instigation of the persons in the management of the company, namely the 2nd and 3 rd respondent, as evident from the individual affidavits filed by these respondents declaring that the Company (i.e. Nexus Marketing Private Limited) does not have any dues towards Income Tax or any other Central or State Government Department/Authorities or any Local Authorities.
Income Tax Department can fall at best under the category of Creditor, provided tax or any other demand or sum is due under the Act from the Company which had been struck off.
In the absence of any demand having been raised or even the estimate of tax that may be due having also not been disclosed any where in the appeal, we are unable to appreciate, merely based upon mere reasons to believe on the part of the Income Tax Authority that income has escaped assessment, the department can prefer this appeal seeking for restoration of the name of the Company which has been struck off.
Appeal dismissed.
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2018 (3) TMI 1789
Auction - case of respondents is that no orders should be passed on the report of auction as there was a person available with him ready to offer better price - HELD THAT:- The highest bid was offered by the M/s ECR Buildtech Pvt. Ltd., New Delhi for an amount of ₹ 1 crore 81 Lakhs at the time of bidding. The earnest money deposited (EMD) of all the unsuccessful bidders were returned on the same date and the EMD amount of the highest bidder has been deposited by the Official Liquidator with Punjab National Bank, Jaipur on 22.02.2018. Prayer has been made to accept the highest bid offered by ECR Buildtech Ltd., New Delhi by the Official Liquidator.
Taking into consideration the reserve price and noting the aforesaid proceedings, it is deemed appropriate to accept the highest bid offered by ECR Buildtech Pvt. Ltd. for a sum of ₹ 1 crore 81 lakhs subject to abiding by the terms and conditions laid down by the Official Liquidator in his notice inviting tenders.
The Official Liquidator is directed to proceed further.
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2018 (3) TMI 1785
Maintainability of appeal - non-prosecution - HELD THAT:- On perusal of the record it is found that on the last occasion petitioner was found absent and even today no steps are taken by the Petitioner to pursue the present matter - the instant application is liable to be dismissed for non-prosecution.
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2018 (3) TMI 1715
Requirements for filing petition - waiver of the requirements of clause (a) sub-section (1) of section 244 - applicant/petitioner is a promoter shareholder of the first respondent-company and is holding 7.79 per cent. of the total shareholding of the first respondent-company, which lacks the requisite percentage of shares of 10 per cent - Whether the applicant/petitioner has made out a case for grant of waiver under the proviso to sub-section (1) of section 244 of the Companies Act, 2013?
Held that:- It is an admitted fact that the respondents have raised the issue that the original application was filed in Form NCLT-I, instead of the format prescribed under rule 83A of the National Company Law Tribunal Rules (Form NCLT-9). The revised application has been filed by making compliance with the National Company Law Tribunal Rules, the content of which are substantially the same, no new cause of action has been pleaded therein. The second objection raised is about the reference to TPCPL, a third company which is falling outside the jurisdiction of this Bench - In order to explain the factual aspects, the applicant/ petitioner has made a reference to the third entity, i.e., TPCPL, which appears to be plausible.
Another objection has been raised by the respondents/respondents in their reply that the applicant/petitioner has approached this Bench for purely directorial dispute and no case of oppression is made out. In this connection, it has been submitted by the applicant/petitioner that the charges framed against the applicant/petitioner are malicious, without valid reasons, and alleged grounds relating to his removal, are false. In such circumstances, the acts of the respondents/respondents amount to oppression. There appears force in the submissions of the applicant/petitioner.
The factors indicated by the hon'ble National Company Law Appellate Tribunal, while deciding the case of Cyrus Investments P. Ltd. v. Tata Sons Ltd. [2017 (9) TMI 1500 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI], are satisfied by the applicant/petitioner - application allowed - the registry is directed to register the petition and list.
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2018 (3) TMI 1714
Ownership and shareholding of the company - Appointment of an inspector or such other person to investigate into the ownership of the company and the shareholding in the company - Held that:- The respondents Nos. 4 to 29 have never contributed to the capital of the first respondent-company. They have allotted shares of the first respondent-company to themselves and became the directors by excluding the actual shareholders by forging the documents on the letter head papers of the first respondent-company, which were given as blank for keeping with respondents Nos. 4 and 5, as security for dues owed by the first respondent-company to them. The respondents have also violated the order dated February 19, 2008 passed by the then Company Law Board by which the status quo regarding the shareholding pattern was ordered to be maintained till further orders.
The shareholding pattern with regard to the first respondent-company as on September 25, 1997 is restored along with the issued, sub scribed and paid-up capital of ₹ 6,10,000 consisting of 6,100 equity shares of ₹ 100 each. Accordingly, the register of members of the first respondent-company shall stand rectified by entering the names of the petitioners and removing the names of respondents Nos. 4 to 29.
Petition disposed off.
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2018 (3) TMI 1707
Registration of transfer of equity shares - refusal on the ground that the first respondent-company had decided in its board meeting on October 26, 2016 to refuse registration as the lodgement is in violation of article 23A of the articles of association of the first respondent-company - sufficient cause or not - sub-section (4) of section 58 of the Companies Act, 2013 - Held that:- It is an admitted fact that the petitioner has purchased 25 equity shares of ₹ 10 each from the tenth respondent which constitutes 0.02 per cent. of the overall shareholding of the first respondent-company. By acquiring such fraction of shares by the petitioner in the first respondent-company, there are no chances of hostile takeover of the first respondent-company by the petitioner. Therefore, this contention of the first respondent-company stands rejected.
Rejection of the registration of the transfer of shares in favour of the petitioner also on the ground that the petitioner-company is running the same business and is a competitor - Held that:- There is nothing on record to suggest that there has been any instance which goes to show that, the petitioner-company as a competitor has derived benefits which were otherwise, to be enjoyed by the first respondent-company - a perusal of copy of the articles of association placed in the typed set filed with the petition reveals that article 23A stood deleted from the time when the first respondent-company became the deemed public company, and the respondents have also admitted that the first respondent-company is a public company. Therefore, the reliance on article 23A which is not the part of the articles of the first respondent is misconceived and the said ground taken by the respondents' stands rejected.
There can be various reasons which may constitute "sufficient cause" for refusal of the registration of the transfer of shares in a public company. In other words, every case is to be seen in the light of its facts and circumstances in order to determine whether reasons on the basis of which the registration has been refused are constituting "sufficient cause" or not. Thus, the discretion of the directors is to be tested as the opinion on fair and sensible manner in the interest of the company as held in Bajaj Auto Ltd. v. N. K. Firodia [1970 (9) TMI 55 - SUPREME COURT OF INDIA].
The decision dated October 26, 2016 of the board of directors by which the registration of transfer of shares of the first respondent-company in the name of the petitioner has been refused is the respondent-company and respondents Nos. 2 to 9 are directed to register the transfer of 25 equity shares of ₹ 10 each in the name of the petitioner by entering its name in the register of members of the first respondent-company and by omitting the name of the transferor, viz., the tenth respondent, viz., Beena George therefrom within ten days from the date of this order - petition disposed off.
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2018 (3) TMI 1642
Winding up petition - bonafide debt - no document of admitted liability - Held that:- There is no document of admitting the liability on record. Though the petitioner is placing reliance upon the alleged ledger account for the period 1.4.2014 to 31.3.2015 and 1.4.2015 to 23.2.2016 (Annexure P/1) but the said ledger account is not signed by any of the parties and is a disputed document, therefore, petitioner is required to lead evidence and establish the debt. In the present case the debt has been bonafidely disputed by the respondent. That apart the respondent is a running hospital and there is no sufficient and cogent material on record to hold that the substratum of the respondent-Company has eroded. The petitioner has also raised a plea in respect of discrepancy in the TDS amount and the payment made but such disputed discrepancy alone is not sufficient to infer the debt or the inability to pay debt.
In absence of any document of admitted liability or any undisputed document reflecting the debt due, this Court is of the opinion that it would not be proper in the facts of the present case to invoke the provisions of Section 433 of the Companies Act for winding up of the respondent-company.
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2018 (3) TMI 1634
Replacement of original financial statements as filed before the MCA-21 with the revised financial statements - Held that:- In spite of availing the opportunities, the Counsel for the IT Department has not filed the objections even after passing the conditional order that the right of filing the objections shall stand forfeited. It appears from the conduct of the RD, ROC and IT Authorities that they are not interested to file the objections. Therefore, their right of filing the objections stands forfeited.
Keeping in view of the facts and circumstances of the case and the submissions made by the Counsel for the Petitioner, I in exercise of the powers conferred under Section 131 of the Companies Act, 2013, permit the Petitioner to replace the original financial statements (Balance Sheets and Profit & Loss Account) for the year ended 31.03.2016 as filed before the MCA-21 on 11.05.2017 with the revised financial statements as approved.
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2018 (3) TMI 1609
Adoption of accounts at AGM - validity of auditors report - Held that:- Auditors have mixed up the entries and have prepared the audited report by taking into consideration pre transfer data. Accordingly, the adoption of the accounts at the AGM slated as per the schedule given in the aforesaid para is stayed till the next date of hearing.
It is clarified that the stay order would not result in activation of the DIN pertaining to the Directors of the Respondent company as well as of the respondent No. I company. Resolutions, if any, passed in any of the other items shall be subject to the final outcome of the present application.
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2018 (3) TMI 1604
Corporate insolvency process - Held that:- Mr. Pranshu Paul, advocate accepts notice on behalf of 2nd respondent i.e. Corporate Debtor through Insolvency Resolution Professional. No further notice need be issued on it. 2nd respondent will assist the Court and, if so desire, may file a reply-affidavit within a week. Mr. R. Sudhinder, advocate submits that he will file an application for impleadment on behalf of the ‘Committee of Creditors’ (CoC). He is allowed to do so within a week along with his Vakalatnama. If such an application is filed, then CoC should be treated as 3rd respondent. We are not issuing separate Notice on the 1st respondent who is a member of Committee of Creditors as we are allowing Mr. R. Sudhinder, advocate to appear on behalf of CoC. He may obtain instructions from 1st Respondent and may file reply.
Post the case for admission on 23rd March, 2018.
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2018 (3) TMI 1553
Inquiry into certain agreements and dominant position of enterprise - Procedure for scrutiny of information or reference - Opinion on existence of prima facie case - whether the writ petition is maintainable against the order made under Section 26(1) since there is no appealable remedy available under the said Act? - Held that:- The direction issued under Section 26(1) is a direction simpliciter and an administrative direction without entering upon any adjudicatory process; that it does not effectively determine any right or obligation of the parties to the lis; that mere investigation does not entile civil consequences for any person; that such direction is at the preliminary stage and of preparatory in nature without recording the findings which will bind the parties; that the function of the Commission to form an opinion under Section 26(1) is in a inquisitorial and regulatory power and therefore, the same is neither civil nor criminal but sui generis; that the jurisdiction of the Commission to act under Section 26(1) does not contemplate any adjudicatory function.
Therefore, it is to be noted that the order passed under Section 26(1) itself does not give rise to a cause of action to subject the same to judicial interference, as the very challenge by way of statutory appeal against such order itself is barred under Section 53A, since such order does not result in civil consequences.
When the very order passed under Section 26(1) is not appealable and the merits of the said order also cannot be questioned before this Court under Article 226, since it is administrative in nature, not deciding the rights of the parties in any manner and on the other hand, it is only in the form of preparatory, that too, at the preliminary stage, the petitioner and the supporting respondents are not entitled to question the said order by disputing or questioning the very reference made under Section 19(1)(b). What they cannot achieve directly, cannot be achieved indirectly by raising a ground against the reference made under Section 19(1)(b). Moreover, it is to be noted that both the reference and information got merged with the direction issued under Section 26(1) and therefore, such reference even assuming to be a defective one, cannot be segregated independently from the order passed under Section 26(1) and decide about its validity, more particularly, when the resultant order under Section 26(1) itself cannot be questioned as it does not result in civil consequences. Thus, it does not give any cause of action for the parties to challenge.
In this case, admittedly, during the pendency of this writ petition, the investigation has already been completed and all the parties have taken part in the investigation. It is also stated that the report of the investigating officer was submitted before the Commission and all the parties have taken part in the proceedings before the Commission and have advanced their arguments. Therefore, the final order alone is to be passed by the Commission. When such being the factual position, it is for the parties to face the order and thereafter to work out their remedy, if the order goes against them. The present writ petition is liable to be dismissed and accordingly, the same is dismissed
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