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Companies Law - Case Laws
Showing 1 to 20 of 663 Records
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2020 (12) TMI 1395
Wilful defaulter - appellants contend that although a demand for payment was made against the borrower company no demand was made against them - HELD THAT:- The right of a borrower on review is very fundamental and extensive. It is not the type of review on the narrow grounds conceived of by Order 47 Rule 1 of the Code of Civil Procedure. When the representation is required to be full on facts and law the consideration is also required to be detailed with reasons on each and every point raised. The question whether a copy of the order of the identification committee was served on the appellants or whether upon service the appellants did not make any representation before the review committee, not gone into. These are questions of fact, not discussed by the review committee. There is no scope to enter into this controversy at the appellate stage. The records as shown to us are silent on this point. The communication dated 4th January, 2017 only tell us that the review committee had declined to review the order of the decision of the identification committee.
When a relevant fact is not considered while exercising this discretion, the considerations are different and the appeal court has the jurisdiction to set aside or modify the interim order appealed against - It is true that this order of the NCLT was not in existence at the time the review was made by the said committee. It is in existence now. For doing complete justice to the case, it is important that this development is also considered by the review committee.
Fresh opportunity granted to the appellants to approach the review committee - application disposed off.
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2020 (12) TMI 1374
Seeking grant of Interim Bail - HELD THAT:- Issue notice restricted to the question of propriety of the order cancelling the bail - The petitioner is directed to be released on interim bail subject to the satisfaction of the trial court.
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2020 (12) TMI 1348
Jurisdiction of Civil Court - validity of a sale deed - Section 430 of the Companies Act 2013 - HELD THAT:- There is no error in the finding that the suit which was filed for a declaration in regard to the invalidity of the sale deeds was properly instituted before the civil court and there was no occasion to transfer the appeal to the National Company Law Tribunal - Section 430 of the Companies Act 2013 bars the jurisdiction of a civil court to entertain a suit or proceeding in respect of any matter which the tribunal or the appellate tribunal is empowered to determine under the Act or any other law for the time being in force.
The jurisdiction to decide the validity of a sale deed would fall within the ambit of the civil court. Hence, the impugned order of the High Court is agreed upon - SLP disposed off.
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2020 (12) TMI 1337
Restoration of the name of the Appellant Company in the register maintained by the Registrar of Companies - Section 252(1) of the Companies Act, 2013 - HELD THAT:- The Appellant Company was neither in operation nor was carrying out any substantial business. Further, the dispute between the Appellant Company with a third party cannot be a ground for non-filing of Balance Sheets or Annual Income Tax Returns - despite being in the business of real estate, the Appellant Company has failed to place or show any document relating to ownership of any fixed asset or project under development, which could justify the need of restoration of the name of the Appellant Company in the Register of Companies.
This Bench is not inclined to interfere with the striking off action taken by the RoC against the Appellant Company under Section 248(5) of the Companies Act 2013 - Appeal dismissed.
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2020 (12) TMI 1319
Maintainability of suit - Emergency Arbitrator lacks legal status under Part I of the A&C Act and thus coram non judice - conflation of the FRL SHA, FCPL SHA and FCPL SSA, Amazon seeks to exercise 'Control' on FRL which is forbidden under the FEMA FDI Rules - tortious interference is made out by FRL or not - Whether the present suit is prima facie maintainable? - HELD THAT:- Challenge of FRL to the EA order is not on merits and no declaration for the EA order being invalid or illegal on merits is sought from this Court. Case of the FRL is that since Amazon is trying to enforce and act upon the EA order before the Statutory Authority/Regulators and as the Emergency Arbitrator is a coram non-judice, this Court can go into the validity of the same to the extent asserted in the present suit. In the present suit, the cause of action pleaded by FRL is the tortuous interference by Amazon in its lawful transaction and to determine the ingredients of the said cause of action, i.e. whether use of 'unlawful means' is being resorted by Amazon, this Court is required to return a finding - this Court is of the considered opinion that prima facie the present suit cannot be held to be not maintainable on the two grounds urged by Amazon, that is, that the EA order cannot be challenged in the present proceedings and secondly, that the grounds urged by FRL before this Court have already been urged and considered by the Emergency Arbitrator.
Whether the Emergency Arbitrator lacks legal status under Part I of the A&C Act and thus coram non judice? - HELD THAT:- It is now well settled that party autonomy is the backbone of arbitration. The courts in India have given due importance to the concept of party autonomy, and have further given full effect to the choice of the parties with respect to all three laws involved in an arbitration agreement, subject to the public policy of India and the mandatory provisions of the A&C Act - In the present case, the parties have expressly chosen the SIAC Rules as the curial law governing the conduct of arbitration proceedings. The said Rules are self sufficient to govern the proceedings under arbitration at every stage. The Courts in such cases would uphold the express choice of the parties subject to the public policy of India and the mandatory provisions of the A&C Act.
The Indian law of arbitration allows the parties to choose a procedural law different from the proper law, and this Court finds that there is nothing in the A&C Act that prohibits the contracting parties from obtaining emergency relief from an emergency arbitrator. An arbitrator’s authority to act is implied from the agreement to arbitrate itself, and the same cannot be restricted to mean that the parties agreed to arbitrate before an arbitral tribunal only and not an Emergency Arbitrator.
This court arrives at the conclusion that Firstly, the parties in an international commercial arbitration seated in India can by agreement derogate from the provisions of Section 9 of the A&C Act; Secondly, in such a case where parties have expressly chosen a curial law which is different from the law governing the arbitration, the court would look at the curial law for conduct of the arbitration to the extent that the same is not contrary to the public policy or the mandatory requirements of the law of the country in which arbitration is held; Thirdly, inasmuch as Section 9 of the A&C Act along with Sections 27, 37(1)(a) and 37(2) are derogable by virtue of the proviso to Section 2(2) in an International arbitration seated in India upon an agreement between the parties, it cannot be held that the provision of Emergency Arbitration under the SIAC rules are, per se, contrary to any mandatory provisions of the A&C Act. Hence the Emergency Arbitrator prima facie is not a coram non judice and the consequential EA order not invalid on this count.
Whether the Resolution dated 29th August, 2020 of FRL is void or contrary to any statutory provision? - HELD THAT:- Case of FRL is that its Board Resolution dated 29th August, 2020 does not violate any provision of the FRL's Article of Association or any provision of law and that the same is in compliance with the fiduciary duty owed by FRL to its stakeholder, which averments have not been seriously disputed by Amazon except contending that the Board Resolution dated 29th August, 2020 is in breach of FCPL SHA and FRL SHA. The resolution being in breach of the FRL SHA and FCPL SHA is distinct from the resolution being void or contrary to any statutory provision or contrary to the Articles of Association of FRL.
To claim that the Board Resolution of FRL dated 29th August, 2020 is void, Amazon also contends that consent of FCPL as required under the FRL SHA has not been taken in this regard. However, FRL has placed on record the letter dated 29th August, 2020, signed on behalf of both FRL and FCPL wherein FCPL has granted its approval for the transaction between FRL and Reliance. During the course of arguments, learned counsel for FRL contested the letter dated 29th August, 2020 claiming that the same is not accompanied by a statement of truth based on affidavit, however, since arguments in the application have been heard finally at the ad interim stage, both parties have filed documents without filling the necessary affidavits, which the parties will be required to in the suit, while completing the pleadings.
This Court is of the opinion that the Board Resolution dated 29th August, 2020 of FRL is prima facie neither void nor contrary to any statutory provision nor the Articles of Association of FRL.
Whether by conflation of the FRL SHA, FCPL SHA and FCPL SSA, Amazon seeks to exercise 'Control' on FRL which is forbidden under the FEMA FDI Rules? - HELD THAT:- A conflated reading of the Clause-4.1 (iv) of the FCPL SHA and Clause-4.1 of the FRL SHA would show that vide the FCPL SHA a control was created even on the voting rights of the promoters of FCPL in relation to their decisions as shareholders of FRL so as to enable the approval of any and every resolution necessary or desirable to give effect to FCPL SHA and FRL SHA and likewise to ensure that no resolution of FRL is passed which is not in accordance with the FCPL SHA and/or FRL SHA. Even Clause-4.1 of the FRL SHA correspondingly provides for an obligation on every person representing as a shareholder of FRL, to exercise any power to vote or cause the power to vote to be exercised at any meeting of the shareholders so as to enable the approval of any and every resolution necessary or desirable to give full effect to the FRL SHA and to ensure that no resolution which is not in accordance with FRL SHA is passed.
The rights granted to Amazon by conflation of the two Shareholders Agreements are prima facie disproportionate to the actual shareholding of Amazon and by camouflaging of words, the extensive rights held by Amazon by the provisions of the inter se agreements set out above, cannot be masked as mere protective rights so as to fall beyond the test of ‘control’ - this Court is prima facie of the opinion that the conflation of the three agreements i.e. FRL SHA, FCPL SHA and FCPL SSA besides creating protective rights in favour of Amazon for its investments also transgress to 'control' over FRL requiring government approvals and in the absence thereof are contrary to FEMA FDI Rules.
Whether prima facie a case for tortious interference is made out by FRL? - HELD THAT:- The tort of unlawful interference in a contract, also referred to as ‘tortious interference’ and ‘causing loss by unlawful means’ forms a species of economic torts and has since decades been a subject of judicial and academic debate - thus, existence of a contract, interference wherein is alleged is a sine qua non for the tort of inducement. Contention on behalf of Amazon is that no such contract between FRL and Reliance has been placed on record hence FRL's suit for tortious interference is not maintainable. The two fold submission of Amazon in this regard is that firstly, the resolution of FRL dated 29th August, 2020 is void and secondly FCPL has not granted its consent which was required by FRL before proceeding with the transaction and in any case the said document has not seen the light of the day.
Whether FRL is entitled to an interim injunction? - HELD THAT:- The trinity of the principles for grant of interim injunction i.e. prima facie case, irreparable loss and balance of convenience are required to be tested in terms of principles as noted above. Since this Court has held that prima facie the representation of Amazon based on the plea that the resolution dated 29th August, 2020 of FRL is void and that on conflation of the FCPL SHA and FRL SHA, the 'control' that is sought to be asserted by Amazon on FRL is not permitted under the FEMA FDI Rules, without the governmental approvals, this Court finds that FRL has made out a prima facie case in its favour for grant of interim injunction. However, the main tests in the present case are in respect of "balance of convenience" and "irreparable loss". Even if a prima facie case is made out by FRL, the balance of convenience lies both in favour of FRL and Amazon.
It would be a matter of trial after parties have led their evidence or if decided by any other competent forum to determine whether the representation of Amazon that the transaction between FRL and Reliance being in breach of the FCPL SHA and FRL SHA would outweigh the plea of FRL in the present suit. Further in case Amazon is not permitted to represent its case before the statutory authorities/Regulators, it will suffer an irreparable loss as Amazon also claims to have created preemptive rights in its favour in case the Indian law permitted in future. Further there may not be irreparable loss to FRL for the reason even if Amazon makes a representation based on incorrect facts thereby using unlawful means, it will be for the statutory authorities/Regulators to apply their mind to the facts and legal issues therein and come to the right conclusion. There is yet another aspect as to why no interim injunction can be granted in the present application for the reason both FRL and Amazon have already made their representations and counter representations to the statutory authorities/regulators and now it is for the Statutory Authorities/Regulators to take a decision thereon. Therefore, this Court finds that no case for grant of interim injunction is made out in favour of the FRL and against Amazon.
The present application is disposed off, declining the grant of interim injunction as prayed for by FRL, however, the Statutory Authorities/Regulators are directed to take the decision on the applications/objections in accordance with the law.
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2020 (12) TMI 1312
Sanction of Scheme of Arrangement - convening and holding separate meetings of certain Creditors of the Applicant Company - Section 230 and other applicable provisions of the Companies Act, 2013 - HELD THAT:- Various directions with regard to holding, convening of various meetings issued - directions with regard to issuance of various notices also issued.
The scheme is approved - application allowed.
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2020 (12) TMI 1307
Maintainability of application - HELD THAT:- The pleadings are complete. Written submission have also been filed. Learned counsel for the Appellant may provide copy of the rejoinder to learned counsel for Respondent No. 1 during the course of the day.
Let the matter be listed ‘for admission (after notice)’ on 8th January, 2021.
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2020 (12) TMI 1295
Seeking direction to respondents to permit the petitioner to get reappointed as Director of any Company or appointed in any other Company without any hindrance - HELD THAT:- The issue involved in this writ petition is no more a res integra. It is to be stated that the Registrar of Companies (RoC) has been disqualifying the Directors under Section 164(2)(a) of the Companies Act, 2013 by order dated 08.09.2017. Another list was published in the website of the first respondent on 01.11.2017 disqualifying the Directors. Yet another list of Directors were disqualified on 17.12.2018 by the RoC.
Issue decided in the case of MEETHELAVEETIL KAITHERI MURALIDHARAN, KAMAL ANEESMOHAMED, SATHISH KUMAR GOPAL, GOVINDASAMY BALASUBRAMANIAM, PAARI SENTHIL KUMAR, PAARI DHANALAKSHMI, VERSUS UNION OF INDIA, THE REGISTRAR OF COMPANIES TAMIL NADU, CHENNAI, [2020 (10) TMI 595 - MADRAS HIGH COURT] where it was held that if a person is a director of five companies, which may be referred to as companies A to E, if the default is committed by company A by not filing financial statements or annual returns, the said director of company A would incur disqualification and would vacate office as director of companies B to E. However, the said person would not vacate office as director of company A. If such person does not vacate office and continues to be a director of company A, it is necessary that such person continues to retain the DIN.
Following the decision of the Hon'ble First Bench of this Court in Meethelaveetil Kaitheri Muralidharan's case, the Writ Petition is allowed.
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2020 (12) TMI 1291
Seeking the sanction of scheme of amalgamation - sections 230 to 232 of the Companies Act, 2013 - HELD THAT:- The requirements of the provisions of sections 230 and 232 are satisfied by the petitioner-companies. The proposed scheme is bonafide and in the interest of share- holders and creditors.
The composite scheme of amalgamation is attached herewith as annexure A and is declared as that the same shall be binding upon all the petitioner-companies, their shareholders, creditors and all concerned under the composite scheme of amalgamation - Application allowed.
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2020 (12) TMI 1274
Liquidation of Corporate Debtor - no resolution plan has been approved and the Committee of Creditors (CoC) has unanimously decided to initiate liquidation proceedings of the Corporate Debtor - Section 33(1) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- Today the CIRP is at this stage that not only 270 days of CIRP have expired but also a huge period beyond 330 days has lapsed.
Ms. Vandana Garg is hereby appointed as Liquidator as provided under Section 34(1) of the Code - liquidation application allowed.
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2020 (12) TMI 1257
Scheme of Amalgamation - seeking holding, convening and dispensation with various meetings - sections 230-232 of the Companies Act, 2013 read with Companies (Compromise, Arrangement and Amalgamations) Rules, 2016 - HELD THAT:- Various directions regarding holding, convening and dispensation with various meetings issued - directions regarding issuance of various notices also issued.
The scheme is approved - application allowed.
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2020 (12) TMI 1256
Giving on lease of Oxygen plant to respondent - Obligation to pay rent on part of the respondent as per the Lease Agreement - seeking restraint on Respondent from utilizing the Leased Equipment situated at the integrated steel plant, Meramandli, Odisha without making payment of the Lease rentals - seeking to direct respondent to immediately pay the entire defaulted amount - mail plea is that the entire transaction leading to the lease agreement is not at arm's length - pending arbitration proceedings - HELD THAT:- There is a clear stipulation in the Lease Agreement for payment of lease rent at ₹ 15 Crores till March 31, 2020 and ₹ 18 Crores w.e.f. April 01, 2020, the said agreement is an admitted document of the parties. It is also an accepted position that the respondent is using the Oxygen Plants. The lease rentals received from the respondent are utilised for servicing the loans taken by petitioner from the Lenders and there is obligation to pay the GST/TDS to the concerned authorities as well. If that be so, there is a prima facie liability on the respondent to pay to the petitioner/Lenders for the usage of the Oxygen Plants in the manner stipulated in the Lease Agreement i.e., Clause 5.1 read with Schedule 2.
Despite specific obligation, the petitioner has failed to undertake routine maintenance measures of the Oxygen Plants and keep the same in good working condition in accordance with best industry practice.
There is a dispute between the parties as to who is responsible for the upkeep of the Oxygen Plants. Prima facie, Dr. Singhvi and Mr. Nigam are right in relying on Clause 6.1.(vii) of the Lease Agreement and Clause 6.1.7 of the Common Loan Agreement that the obligation in on the petitioner, but there is a dispute as to whether the Oxygen Plants actually required any maintenance.
It is clear that ₹ 18 crores being the contractual amount w.e.f. April 01, 2020, the said amount is prima facie payable by the respondent atleast till such time the parties seek adjudication of the disputes as per the contractual provisions - So, it is directed that the respondent shall pay the arrears of lease rent (net of all taxes/TDS), after adjusting the amount already paid, to the lead Lender Bank with applicable interest within six weeks from today.
Petition allowed.
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2020 (12) TMI 1247
Seeking appropriate directions against the Resolution Professional to reconstitute the CoC - Section 21 of I&B Code - HELD THAT:- In Anuj Jain [2020 (2) TMI 1259 - SUPREME COURT], JIL, which is the Corporate Debtor, created mortgage of its properties to the Bank, as collateral security of the debt of its holding company JAL and Hon'ble Apex Court held that the lenders of JAL could not be categorized as Financial Creditors of JIL for the purpose of the Code. Whereas in Ascot Reality Private Limited [2020 (10) TMI 962 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , NEW DELHI] the Corporate Debtor given guarantee for repayment of the debt.
A careful examination of Anuj Jain [2020 (2) TMI 1259 - SUPREME COURT] and Ascot Reality Private Limited [2020 (10) TMI 962 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , NEW DELHI] shows that the facts in Ascot Reality Private Limited (supra) are akin to the facts in the instant IA and clearly support the decision taken by the Resolution Professional in categorising the respondent No.2 as Financial Creditor and giving voting rights basing on its claims.
There are no merits in the application - application dismissed.
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2020 (12) TMI 1246
Disqualification of directors - Seeking permission to get reappointed as Directors of any Company or appointed as Directors in any company without any hindrance - HELD THAT:- The Hon'ble Division Bench in Meethelaveetil Kaitheri Muralidharan V. Union of India [2020 (10) TMI 595 - MADRAS HIGH COURT] dealt with the powers of the RoC in the light of Sections 164 and 167(1) of the Companies Act, 2013 and Rule 14 of the Companies (Appointment and Qualifications of Directors) Rules, 2014 and also has elaborately considered as to whether the RoC is entitled to deactivate the Director Identification Number (DIN) by referring to the Rules 19, 10 and 11 of the said 2014 Rules and held that As a corollary to our conclusion on the deactivation of DIN, the DIN of the respective directors shall be reactivated within 30 days of the date of receipt of a copy of this order.
Petition allowed.
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2020 (12) TMI 1243
Approval of scheme of amalgamation - Seeking modification of earlier order - directions for reconvening and holding of the meetings of Equity Shareholders and Unsecured Creditors of the Applicants - Section 230(1) read with Section 232(1) of the Companies Act, 2013 - HELD THAT:- Various directions regarding holding and convening of various meetings issued - various directions regarding issuance of various notices also issued.
The scheme is approved - application allowed.
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2020 (12) TMI 1238
Approval of scheme of Amalgamation - seeking to dispense with the meetings of the Equity Shareholders of both the Applicant Companies and Unsecured Creditors& Secured Creditors of the Applicant Company - Sections 230 & 232 of the Companies Act, 2013, R/w Rule 3(2) of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - HELD THAT:- The Companies have disclosed material information with regard to the Scheme in question, and in the normal circumstances, it is the prerogative of concerned Companies to evolve a Scheme suitable to them and the Tribunal is only empowered to examine the Scheme broadly, whether the Scheme is prepared in accordance with law and the interest of all the stakeholders of Companies involved are taken care of by affording due notice of Scheme, etc. The Scheme in question, prima facie found to be in the larger interests of the Companies involved and their stakeholders.
The Tribunal is empowered, under Section 230(9) of the Companies Act, 2013, to dispense with calling of a meeting of creditors or class of creditors, where such creditors or class of creditors, having at least ninety per cent value, agree and confirm, by way of affidavit, to the Scheme of compromise or arrangement. Therefore, there is no necessity to convene the meetings for the same purpose and the Tribunal can allow the Application as prayed for, on the principle of ease of doing business.
Application disposed off.
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2020 (12) TMI 1180
Approval of Scheme of Arrangement by way of Amalgamation - section 230-232 of Companies Act, 2013, and other applicable provisions of the Companies Act, 2013 read with Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - HELD THAT:- Various directions regarding holding and convening of various meeting issued - various directions regarding issuance of various meetings issued.
The scheme is approved - Application allowed.
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2020 (12) TMI 1179
Restoration of the name of the Company in the Register maintained by the Registrar of Companies - Section 252 (3) of the Companies Act, 2013 - HELD THAT:- The provisions pertaining to restoration of the name of the company has been provided in Section 252 of the Companies Act, 2013 which includes that, if it is just and equitable to restore the name of the company in the Registrar of Companies, it may direct the RoC to restore the name in its Register - The appellant has been able to satisfy this Bench that it has certain assets which necessitate and justify restoration of its name in the Register of Companies. A step as stringent as what has been taken at least requires an opportunity to the appellant to take remedial measures. Merely to disallow restoration on grounds of its failure to file annual returns would neither be just nor equitable.
The restoration of the Appellant Company’s name in the Register will be subject to their filing all outstanding documents for the defaulting years as required by law and completion of all formalities, including payment of any late fee or other charges which are leviable by the respondent for the late filing of statutory returns - Appeal allowed.
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2020 (12) TMI 1178
Transmission of shares made by the Applicants - Section 58 of Companies Act - HELD THAT:- The Petitioners are admittedly natural legal heirs of deceased shareholder and have submitted representation/ request to the Company along with requisite documents and the Company failed to act upon, forcing the Applicants to approach the Tribunal bearing the cost of litigation. Section 58 clearly mandates the Company to act within stipulated period. However, the Company failed to do so. Since the issue is mere transmission of un-disputed shares of mother of the Petitioners, and it do not involve any contentious issues to be adjudicated upon by the Tribunal, it would be just and proper to direct the Company to take appropriate action for transmission of shares in question to the Applicants. And no prejudice would be caused to the Company to accede the request of Applicants, their inaction is illegal and against the said provision.
The Contention of learned counsel for the Respondent that the Applicants have not submitted Will of deceased share holder is not tenable in the instant case.
The Respondent Company is directed to take appropriate action for transmission of shares held in the name of Mrs. Parvathamma to the Petitioners, within a period 3 (three) weeks from today - petition allowed.
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2020 (12) TMI 1177
Approval of scheme of Merger by Absorption - section 230-232 of Companies Act - HELD THAT:- This Bench hereby dispensed with the meeting of unsecured Creditors of Applicant Company No. 1. further, this Bench directs to the Applicant No. 1 to issue notice to all the Unsecured Creditors Under Section 230(3) of Companies Act, 2013 with such direction that they may submit their representation, if any, to the Tribunal and copies of such representation shall simultaneously be served upon the respective Applicant No. 1.
The Applicant Companies shall serve notice upon the Official Liquidator, High Court, Bombay pursuant to Section 230(5) of the Companies Act, 2013 read with Rule 8 of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016. The Tribunal hereby appoint a Chartered Account from the Panel of Official Liquidator/MCA to scrutinize the books of accounts of the Applicant No. 1 and Applicant No. 2 and submit its report to the Tribunal as Proposed or suggested by the office of the Official Liquidator.
The scheme is approved - application allowed.
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