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Companies Law - Case Laws
Showing 21 to 40 of 48 Records
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2018 (2) TMI 1502 - DELHI HIGH COURT
Winding up petition - whether any bona fide dispute or debate was raised by the appellant - Held that:- We believe that the appellant has been marking time and delaying payment. As per acknowledgment in the statement of accounts dated 8th January, 2014, ₹ 12,00,155/- was due and payable. No payment has been made since then. Interest on the said amount would be due and payable. The reply to the company petition was filed belatedly after 222 days. Costs imposed vide order dated 22nd July, 2016 was not paid for nearly a year, when the impugned order dated 24th May, 2017 was passed. There was also non-compliance of the order dated 22nd July, 2016, as affidavits enclosing therewith relevant information and documents were not filed. Order dated 19th January, 2017 had directed the Managing Director to be present, failing which, the Court would be constrained to take coercive steps. This was also noticed in the impugned order. Admittedly, the Managing Director of the appellant company was not present.
It is stated that Jatinder Singh Bagga and his son Shiv Karan Bagga are Directors of the appellant company and Shiv Karan Bagga has suffered kidney failure. We can understand the difficult and hard times being faced, but we cannot accept repeated and prolonged failure on the part of the appellant company and its Directors to file reply, and then comply with the orders. Court proceedings are not to be taken lightly.
In these circumstances, we are not inclined to issue notice in the present appeal and the same is dismissed. However, the dismissal would not mean that the appellant cannot approach the Company Judge with payment towards principal amount, interest and cost. Of course, compliance by filing affidavit etc. should be also made.
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2018 (2) TMI 1452 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Comply with the arbitration award - Violation of the provisions of the Companies Act, 2013 - whether the Company can convert a loan into equity shares if at the time of raising the money, the company had not passed special resolution? - removal of the Petitioners as Directors - Held that:- The arguments of the learned counsel for the Appellants is that this Section could not have been applied and if at all Section 81 of the Old Act would be relevant, as according to him, when the loans were raised, at that time the New Act was not in force. We find that there is no substance in this argument. When the New Act is in force and conversion of loan has to be done, the conversion would be permissible only as per the new provisions. In view of sub-Section (3) of Section 62 when the question of issue of further share capital is taken up, conversion of loan into share capital would be permissible provided there was special resolution passed by the company in General Meeting which granted option as a term attached to the loan raised by the Company permitting conversion of such loan into shares of the company.
It cannot be that moment a document is executed, the party goes and takes over the Companies and starts doing whatever he likes without following any procedure for transfer of shares, administration etc. Till the Petitioners resigned as Directors or were removed under established procedure under the Companies Act, or in execution, it will not be permissible not to send any notices to them and declare that they have not attended meetings and they discontinued to be Directors under Section 167 of the New Act. The Appellants themselves in the NCLT relied on Section 167 to claim that the Original Petitioners were not Directors. As such, they were bound to show that duly notified and called meetings were not attended to so as to attract Section 167 of the New Act.
Original Petitioners have filed an Execution Petition before the High Court of Calcutta to give effect to the award. Even the Appellant No. 1 has filed application under Section 17 of the Arbitration Act as has been referred above. It would be more appropriate for the parties to cooperate with each other and comply with the Arbitration Award as has been passed between the signatory parties and do the necessary legal compliances as per the Arbitration Award for implementation/execution of the same. If it is done mutually, execution would not be necessary, otherwise the aggrieved parties would naturally have the option of the execution of the award. Till that time, it is necessary for the parties not to commit such acts as would attract violation of the provisions of the Companies Act, 2013. For such reasons, we are unable to interfere with the impugned order.
We decline to interfere with the impugned order. The appeal is disposed of accordingly. We, however, make it clear that the Appellant No. 1 and Respondents are free to either mutually comply with the Arbitral Award or take steps permissible, under provisions of the Companies Act, 2013 or resort to Execution under the Arbitration and Conciliation Act, 1996.
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2018 (2) TMI 1451 - NATIONAL COMPANY LAW TRIBUNAL, CHANDIGARH
Manner of holding of 44th Annual General Meeting of the shareholders of the company - non compiling with the provisions of the Companies (Management and Administration) Rules, 2014 - oppression or mis-management - Held that:- Filing of the instant petition is simply an abuse of the process of the Court and to harass the company and its management. Except the name of respondent No.5 Mr.Sudhir Avasthi, there is not even remote reference to the role of respondents No.2 to 4 and in what capacity, they have been impleaded. Name of respondent No.2 as a Director of the company appears in the Report Annexure P-4 sent to BSE.
In order to support the contention that the company has not complied with the provisions of the Companies (Management and Administration) Rules, 2014, the petitioner has not appended with this report, copy of Form No.MGT-15, prescribed in the aforesaid Rules, which the company is required to file with the Registrar of Companies. In the absence of filing of such form, it is not possible to accept the contention raised by the petitioner. In any case, if there is any violation, the remedy is not to file a petition before the Tribunal, but before the appropriate authority for violation, if any, of the provisions of the Companies Act, 2013 and the rules framed thereunder.
The only requirement of Section 96 of the Act is holding of AGM of the company each year, which has been complied with. The manner in which the meeting has been conducted cannot be raised as a question before the Tribunal. It is simply alleged in the petition that the petitioner was present through his representative and certain other shareholders present also raised objection, but the name of any such person, has not been mentioned. The petitioner has not disclosed the name of his representative present in meeting nor any affidavit of the said representative to support this allegation. The petitioner has also stated that shareholders were threatened by the management at the time of voting, but it is not the case of the petitioner that any complaint with the concerned police station was lodged to support this assertion.
Non-compliance of certain provisions, the same may amount to an offence or an act of oppression or mis-management for which the requisite percentage of the shareholders is necessary to maintain a petition under Section 241 of the Act. Section 244 of the Act deals with the right of the members to file a petition on the ground of oppression and mis-management.
The instant petition is, therefore, dismissed at the preliminary stage with exemplary costs of ₹50,000/-
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2018 (2) TMI 1420 - SUPREME COURT
Valuation of properties - company in liquidation - symbolic possession of the properties - Held that:- (i) The Official Liquidator, with the guidance of the Court Receiver and after obtaining appropriate directions from the learned Company Judge in consultation with Justice A.S. Oka, can go ahead to sell the movable properties and, thereafter, proceed to sell the immovable properties which find mention in paragraph (a) of the prayer clause.
(ii) The amount spent by the Official Liquidator and the Court Receiver shall be reimbursed by the SEBI after getting approval from the learned Company Judge in consultation with Justice A.S. Oka and due intimation thereof shall be given to the contemnor.
(iii) The symbolic possession of the properties of the Aamby Valley Limited taken by the Court Receiver, Bombay High Court from 11th to 14th December, 2017, stands confirmed.
(iv) The Court Receiver is conferred with all the powers under the Code of Civil Procedure to deal with all the situations and events prevailing and occurring in Aamby Valley City on an almost daily basis and/or in relation to its properties so that the actions already taken and/or proposed to be taken are not impeded or obstructed in any manner by any person.
(v) The Court Receiver is permitted to take such actions as may be necessary for compliance of the orders and directions passed by this Court in respect of movable and immovable properties situate in the Aamby Valley City and also appoint the Aamby Valley Group of Companies or any of them or any other agency as agents of the Court Receiver on terms and conditions to be determined by the Court Receiver.
(vi) The Court Receiver is also authorized to engage and retain the services of existing professionals, including Advocates, Agencies, Architect, Chartered Accountants and Engineers to maintain Aamby Valley City and to ensure that no encroachments take place.
(vii) It shall be the duty of the Court Receiver to see that the valuation of the properties does not reduce and the auction, as directed today, shall take place in a peaceful manner. The steps taken by the Court Receiver shall be put forth before the learned Company Judge, who shall take a decision in consultation with Justice A.S. Oka.
(viii) As this Court is in seisin of the matter, no other court in the country shall entertain any litigation pertaining to Aamby Valley City.
On a query being made, Mr. Khambatta, learned senior counsel, submitted that after due survey is made, the sale proceeding shall start and it may take approximately two months.
Let the matter be listed at 3.00 p.m. on 19th April, 2018
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2018 (2) TMI 1419 - GUJARAT HIGH COURT
Winding up of the Company - Held that:- In the case on hand, the respondent has raised a bonafide disputes as regards to the debt and in facts of the case, the proceedings under Sections 433 and 434 of the Companies Act, 1956 is not an alternative method of recovering debt which is disputed only because the plant of the respondent-Company is closed and therefore, it cannot be said that the respondent-Company has neglected to pay on a statutory demand as decided by this Court in the case of Tata Iron & Steel Company Ltd. (2000 (3) TMI 920 - HIGH COURT OF GUJARAT).
Considering the aforesaid facts of the case and considering the ratio relied upon by the Apex Court as well as this Court, the affidavits and counter affidavits, it appears that the debt is not an admitted debt and bonafide disputes are raised by the respondent-Company and on the basis of the aforesaid, it cannot be said that nonpayment of bonafide disputed debt would amount to neglect to pay so as to make liable under Sections 433 and 434 of the Act and thus, the present case would not fall under the same.
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2018 (2) TMI 1332 - DELHI HIGH COURT
Winding up petition - proof of outstanding dues - neglection to pay the balance due - Held that:- A bare reading of the aforesaid Warranty Clause clearly demonstrates that the same was applicable only for any manufacturing defect, bad workmanship or quality for a period of 15 months from the date of supply or 12 months from the date of commission, whichever was earlier. The Warranty Clause does not in any manner cover the short supply. The Warranty Clause would not explain issuance of debit notes dated 31.3.2016 after the supplies were made between August, 2012 and October, 2013. Appellant has failed to place on record or refer to any correspondence after 17.08.2012/31.07.2013 or within 15 months after any alleged short supply. Issue of debit notes was a mere deception and cover up.
Reasonable time is a question of fact, as per Section 63 of the Act, and cannot be as long as claimed by the appellant, and as rightly held by the learned Single Judge. In view of the aforesaid discussion and the fact that the appellant has raised the plea of debit notes after about 2½ years clearly proves that the debit notes raised are false and sham. Aforesaid defence regarding debit notes has been raised by the appellant in the Court to deny its liability regarding the balance due to the respondent. Hence, we fully agree with the findings of the learned Single Judge that the appellant has neglected to pay the balance due to the respondent without any cogent, substantial or genuine cause. Therefore, it cannot be said that the appellant has the ability to pay but has chosen not to pay or that it has a lesser liability to pay.
As the appellant, at the end, submitted that the appellant is ready to comply with the directions of the learned Single Judge to pay to the respondent company the amount and has already handed over a cheque of ₹ 7,97,182/- to the respondent, in compliance of the order of this Court, as is evident from the order sheet dated 15.9.2017. Hence, the citation may not be published and direction for appointment of the provisional liquidator may be cancelled. The respondent may withdraw the amount as stated hereinabove by the learned counsel for the appellant.
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2018 (2) TMI 1331 - GUJARAT HIGH COURT
Scheme of dissolution - Held that:- There appears to be proper compliance of the provisions of Section 497 of the Act, finds that the prayers sought for in the present report could be granted.
In view of above, the company is ordered to be dissolved in terms of Section 497 of the Act. The Ex-directors of the company are directed to pay ₹ 10,000/- being expenses relating to filing of the present report to the office of the Official Liquidator within a period of three weeks from the date of receipt of intimation from the Official Liquidator for payment of such amount to the office of the Official Liquidator. The Voluntary Liquidator shall preserve the books of accounts of the company for a period of five years from the date of the report.
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2018 (2) TMI 1330 - SECURITIES APPELLATE TRIBUNAL, MUMBAI
Violation of provisions contained in the SEBI Regulations, 2003 - Penalty imposed - failure to comply with the disclosure obligations - Held that:- AO has set out the obligation of the appellant to make disclosures under the aforesaid regulations when the shareholding of the appellant in EIIL stood reduced from 53.01 to 9.91% and thereafter increased from 9.91% to 43.01% on 31.03.2005. Assuming that on 31.03.2005 appellant came to know about the transfer of shares belonging to the appellant, after 31.03.2005 appellant ought to have made disclosures which the appellant failed to do. Similarly, when shares of EIIL in the name of third parties were transferred to the name of the appellant disclosures ought to have been made, but the appellant failed to make disclosures. Thus, in the facts of present case, decision of the AO that the appellant has violated the disclosure obligations contained in the Takeover Regulations and PIT Regulations cannot be faulted.
Penalty imposable under Section 15A (b) of SEBI Act for failing to comply with the disclosure obligations under the aforesaid regulations is up to ₹ 1 crore. However, the AO after considering all mitigating factors has imposed penalty of ₹ 5 lac which cannot be said to be excessive or unreasonable.
Strong reliance on the statement contained in the SEBI investigation report to the effect that there were no debit and credit entries in the demat statement of the Agrawal family during the investigation period is not acceptable because, admittedly appellant had handed over shares of EIIL in physical form to Shambhu Agrawal. In such a case question of making any debit or credit entry in the demat account does not arise at all.
Once it is established that the appellant had adopted a modus operandi for trading in the shares of EIIL belonging to the appellant in violation of the regulations framed by SEBI, then irrespective of the fact that the appellant had received any consideration or not, the appellant is bound and liable to face the consequences for violating SEBI Act and the regulations framed thereunder. Fact that lesser penalty has been imposed on the Agrawal group cannot be a ground to take lenient view towards the appellant, because, the appellant was the chief architect of manipulating a device for committing fraud on the investors in the securities market.
Thus appellant who was instrumental in manipulating a device to defraud the investors in the securities market could have been made liable to pay aggregate penalty up to ₹ 51 crores [(up to ₹ 25 crore under Section 15HA, up to ₹ 25 crore under Section 15H(ii) and up to ₹ 1 crore under Section 15A(b)] under the SEBI Act. However, after considering all mitigating factors the AO has imposed aggregate penalty of only ₹ 1 crore on the appellant promoter-director of the company who was the chief architect in manipulating a device which is prohibited under the securities laws. Hence, in the facts of present case, aggregate penalty or ₹ 1 crore imposed on the appellant cannot be said to be exorbitant or unreasonable.
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2018 (2) TMI 1329 - NATIONAL COMPANY LAW TRIBUNAL, CHANDIGARH
Company failure to repay the deposit or part thereof or any interest thereon within time specified - Held that:- When the matter was listed on 22.08.2017, the Tribunal had directed the petitioner to make due payment of the deposits upto principal amount of ₹ 1,00,000/- to the depositors. However, there was a specific undertaking given by the petitioner company on 22.08.2017 that the deposits upto ₹ 1,00,000/- shall be cleared within one week, but the petitioner company seems to have interpreted the undertaking as per its own choice to restrict to the depositors present in the Court. This conduct of the company would ipso facto disentitle the petitioner to any further relaxation. In paragraph 7 of the affidavit, it is re-iterated that the company has made payments to the depositors present in the Tribunal on 22.08.2017.
As stated in this affidavit dated 04.09.2017 that the petitioner company may be allowed further extension of two years for making payment of the amount due, but not paid as on 31.08.2017 i.e. the amount of deposits due as per the order of the NCLT Delhi Bench upto 31.08.2017 to be paid by 31.08.2019. It is further prayed in this affidavit that for the deposits payable from 01.09.2017 onwards, the extension of two years more may be granted in addition to the time granted while approving the Scheme on 20.10.2016. Such a prayer made in the matter, which stood disposed of on 20.10.2016 is absolutely not tenable. This would amount to second time extension, which in any case cannot be permissible.
No ground for further indulgence in the matter and hold that the petitioner company is bound to comply with the orders dated 20.10.2016 for making payment to the depositors in accordance therewith as further clarified in the order dated 02.02.2017 whereby the extension of time with regard to components of interest and the principal amount was granted.
As the instant petition remained pending for quite some time, a direction is issued to the petitioner company to pay the upto date amount for which the petitioner company has defaulted despite the directions dated 20.10.2016 and further clarified on 02.02.2017, by 15.01.2018 and shall file an unconditional affidavit stating strict compliance, with the Registrar of Companies, NCT of Delhi and Haryana, by 24.01.2018.
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2018 (2) TMI 1328 - NATIONAL COMPANY LAW TRIBUNAL, AHMEDABAD
Seeking cancellation of Extra Ordinary General Meeting (EGM) - Held that:- On perusal of the records it is found that one application under Section 8 of the Arbitration and Reconciliation Act, 1996 is pending and fixed for hearing on 09th October, 2017 which is with regard to the maintainability of the main Company Petition. Further, since the applicant has already received notice of the EGM, he/they is/are at liberty to attend the meeting and raise his/their voice, if any. As such I find no reason at this stage to pass any order to restrain holding of EGM by the respondents and if at all there is/are any illegality that can be recorded and can be raised before the bench by the applicants as and when required for redressal of their grievances since the company petition is pending.
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2018 (2) TMI 1267 - GUJARAT HIGH COURT
Winding up petition - Held that:- The Court, having heard learned advocate Ms. Chandarana for the appellant and having considered the contents of the report with the documents annexed therewith especially liquidator's Statement of Account for the windup, finds that the prayers made for dissolution of the company could be granted in exercise of powers under Section 497 of Act.
In view of the above M/s. Kelur Investments Private Limited (the Company in voluntary windup) is order to be dissolved under Section 497 of the Act from the date of the report. However, the voluntary liquidators Ms. Gira Sarabhai, Mr. A.R. Mehta and Mr. D.S. Mehta, shall preserve the Books of Account of the company for a period of 5 years from the date of the report. The Directors of the company shall pay office expenses of ₹ 10,000/- to the official liquidator for submitting present report within a period of three weeks from the date of intimation of the present order to them.
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2018 (2) TMI 1193 - GUJARAT HIGH COURT
Dissolution of company - Held that:- As stated in the present report, there are no assets and properties of the company nor any fund is available in the account of the company and, therefore, that the Registrar of the Companies as well as other Government Departments have no objection if the company is allowed to be dissolved.
Court having heard learned advocate for the Official Liquidator and having considered the contents of the present report with the documents annexed with the report and also having considered that there appears to be proper compliance of the provisions of Section 497 of the Act, finds that the prayers sought for in the present report could be granted.
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2018 (2) TMI 1192 - GUJARAT HIGH COURT
Dissolution of company in voluntary winding up seeked - Held that:- As there are no assets and properties nor any fund is available in the account of the company and that the Registrar of the Companies as well as other Government Departments have no objection if the company is allowed to be dissolved.
The Court, having heard learned advocate for the Official Liquidator and having considered the contents of the present report with the documents annexed with the report and also having considered that there appears to be proper compliance of the provisions of Section 497 of the Act, finds that the prayers sought for in the present report could be granted.
Company is ordered to be dissolved in terms of Section 497 of the Act. The Ex-directors of the company are directed to pay ₹ 10,000/- being expenses relating to filing of the present report to the office of the Official Liquidator within a period of three weeks from the date of receipt of intimation from the Official Liquidator for payment of such amount to the office of the Official Liquidator
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2018 (2) TMI 1191 - BOMBAY HIGH COURT
Decree against the Defendants to jointly and severally pay to the Plaintiffs the outstanding principal amount along with interest accrued thereon - whether the present suit filed on 27th October, 2015 is barred by the Law of Limiation? - Held that:- Mentioned paragraph in the e-mail dated 12th April, 2013 (Exhibit-BB-8 at page 374 of the Plaint) constitutes an acknowledgment on the part of Om Sai Motors that they are liable to pay ₹ 5 Crores to Tata Motors/TML. Om Sai Motors, therefore, cannot be now heard to say that the paragraph from the email dated 12th April, 2013 cannot be treated as an acknowledgement by Om Sai Motors and that the suit is barred by the law of limitation.
Charges towards taxes and duties would also include charges towards Form-C under the provisions of the Sales Tax laws. It also cannot be accepted that the Summary Suit is not maintainable because Tata Motors/TML have relied upon a ledger account maintained by Tata Motors/TML. The claims of Tata Motors/TML is based on the invoices raised against Om Sai Motors for vehicles supplied by Tata Motors to Om Sai Motors and for Logistic support provided by TML to Om Sai Motors. The claim, as submitted by Tata Motors/TML is based on a written contract and, therefore, the Summary Suit is maintainable. After accepting all the vehicles from Tata Motors/TML and acknowledging the same on the invoices submitted to them by Tata Motors/TML and also acknowledging their liability to pay the balance dues of ₹ 5 crores, Om Sai Motors have thereafter for the first time by its e-mail dated 13th June, 2013 tried to raise the defence that Tata Motors/TML had handed over the vehicles to Om Sai Motors despite Om Sai Motors not having ordered for the same only because the same were lying in their yard. The defence on the face of it appears to be false and is not bonafide and has no merit.
The present case is covered under clauses (e) and (f) of para 18 of the decision in IDBI Trusteeship Services Ltd. (2016 (11) TMI 1529 - SUPREME COURT) and Tata Motors/TML are entitled to a judgment forthwith. Even otherwise, the learned Advocate appearing for the Defendants has informed the Court that the Defendants are not in a position to even deposit in Court any amount whatsoever.
The above Summons for Judgment is therefore allowed in terms of prayer clause (a) with a modification to the extent that the Plaintiffs shall be entitled to interest on unpaid invoices only from the date of filing of the Suit
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2018 (2) TMI 1190 - BOMBAY HIGH COURT
Winding up petition - Power of Registrar to strike defunct company off register - Held that:- Just because the name of the company is struck off the register under Section 248 of the Companies Act, 2013, that will not come in the way of the Court to pass an order winding up of company.
Therefore, even under the Companies Act, 1956, if the Registrar of Companies was to strike off the name of the company from the register, that would not affect the power of the Court to wind up the company the name of which has been struck off the register.
In the circumstances, there is no bar in winding up the company. It should be noted that the company has not filed any affidavit in reply opposing the petition. Therefore, the averments in the petition are not controverted. Even to the statutory notice, no reply has been filed. It is settled law that where no response to a statutory notice has been made, the court may pass a winding up order on the basis that amount claimed has not been denied by the company and there is a presumption of inability to pay by the company. Where no response has been made to the statutory notice, the respondentcompany runs a risk of winding up petition being allowed. By virtue of Section 434 of the Companies Act 1956 a presumption of the indebtedness can be legitimately drawn by the court where no reply to the statutory notice is forthcoming.
Thus having heard petitioner and having considered the petition alongwith the documents annexed to the petition, it is satisfied that the company is indebted to petitioner, is unable to discharge its debts, is commercially insolvent and requires to be wound up.
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2018 (2) TMI 1133 - SECURITIES APPELLATE TRIBUNAL, MUMBAI
Scheme of the Insurance Act read with that of IRDA Act - appointment of Administrator to manage the affairs of the Insurer under the control of the IRDAI by invoking powers conferred upon it under provisions of Section 52 (A) of the Insurance Act, 1938 - transfer the insurance business of the Appellant to an outside insurer - Held that:- The report and its outcome have potentially and adversely affected the appellant, therefore, the IRDAI must have supplied a copy of the report to the appellant before passing the impugned order dated July 28, 2017 seeking to transfer the insurance business of the Appellant to an outside insurer, namely – ICICI Prudential Life Insurance Co. Ltd., to enable the appellant to make a representation on the Administrator’s report in question. This action of the IRDAI is clearly in breach of the principles of natural justice.
The same cannot be countenanced when we look at the larger scheme of the Insurance Act and the place the Respondent occupies in regulating the insurance business in the country. The impugned order dated July 28, 2017, therefore, deserves to be quashed and set aside and we order accordingly. In fact, it is not the case of the IRDAI that whenever an Administrator is appointed to manage the affair of an Insurance Company on account of certain alleged irregularities, transfer and merger of the said Insurer with another outside Insurer is the only consequence which shall invariably flow. IRDAI must apply the principles of proportionality before resorting to such extreme measures of transfer, merger or winding up of an insurance business altogether.
The action must commensurate with the nature of the violation in a given case. IRDAI is obligated to look into as to whether the violation is technical, venial in nature or is a serious violation which would gravely jeopardize the interest of policyholders of the said Insurance Company. In the instant case, the order is passed mechanically rather than by due application of mind on the facts and circumstances of the case, including the overall scheme of the Insurance Act read with that of IRDA Act.
While upholding the appointment of the Administrator and the consequential order we hereby quash the impugned order impugned and restore the whole matter to the file of the IRDAI with a direction to proceed from the stage of seeking a representation/response from the Appellant on the Administrator’s report in question as well as providing opportunity of being heard to the Appellant in consonance with the principles of natural justice. During the fresh hearing to be offered by the IRDAI to the appellant under this order, any of the parties, if it wishes to produce some documents or summon it from the other party, the said request shall also be considered as per law by affording an opportunity in this regard. IRDAI shall make an endeavor to complete the above said process as per law preferably within a period of three months from the date of receipt of the appellant’s reply/response to the Administrator’s report in question as per law and after giving opportunity of hearing to the Appellant.
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2018 (2) TMI 1132 - NATIONAL COMPANY LAW TRIBUNAL, CHENNAI
Restoration of the name of the Applicant Company to the Register maintained by the concerned RoC - Held that:- We allow the Application and order for restoration of the name of the Applicant Company to the Register maintained by the concerned RoC. We direct the Applicant Company to deliver a certified copy of this Order to the Registrar of Companies within 30 days from the date of this order. On such delivery, the concerned Registrar of Companies shall in his official name and seal, publish the Order in the Official Gazette, as prescribed.
We direct the Applicant Company to file all pending Financial Statements and Annual Returns with the concerned Registrar of Companies by making compliance with the requirements prescribed under the provisions of the Companies Act, 2013 and the Rules made thereunder within the time as may be granted by the concerned Registrar of Companies.
The Applicant Company is further directed to submit an Undertaking to the Registrar of Companies stating therein that the accounts of the Company were not used as means to transact tainted money during the period of demonetization.
We impose fine to the tune of ₹ 10,000/- on the Applicant Company which shall be disbursed to the concerned Office of the Registrar of Companies as per the procedure prescribed for the purpose of the expenses to be incurred by the Registrar of Companies for processing the case file of the Applicant Company for getting the name of the Company restored to the Register of the Companies.
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2018 (2) TMI 1063 - NATIONAL COMPANY LAW TRIBUNAL, AHMEDABAD
Company name removal from the Register of Companies [‘ROC’] - non commencement of business within one year of its incorporation - restoration of name seeked - Held that:- The Company is registered with the object of doing Real Estate business including other businesses. From the documents filed by the appellant on 23rd August, 2016 it appears that the Company entered into the MOU to purchase certain lands for the purpose of development. The Bank’s account also shows certain transactions relating to the Company by the date of striking off the Company.
Even otherwise, another ground that is available for restoration of the Company is if it is otherwise just to restore the name. ‘If it is otherwise’ means it must be any other ground other than carrying on business or in operation on the date of striking off. The ROC in his Representation did not raise any objection for restoring the name of the Company on the ground that it is involved in any act which is illegal or tax evasion. According to the Appellant, the Company is going ahead with its business and it has to pay the balance amount to the owner of the land from whom the Company purchased the land. Therefore, even otherwise it is just to restore the name of the Company. As already stated above, the Company had filed copies of Bank Statement and Income Tax Returns. Therefore, this Tribunal is of the view that it is just to restore the name of the Company in the Register of Companies
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2018 (2) TMI 1062 - NATIONAL COMPANY LAW TRIBUNAL, HYDERABAD
Oppression and mismanagement - Company Petition maintainability - no proper GPA and not fulfilling requisite conditions prescribed under u/s. 241 of the Companies Act, 2013 - validity of sale deed - removal of second respondent from the office of Company - Held that:- Company has proposed an Extraordinary General Meeting as early as 2nd July, 2015 with proposal to remove the second respondent from the office of Company on the ground that he was facing charges under section 138 of NI Act, in Court of law and misappropriated ₹ 2,20,000/- of Company funds . In addition, in the above transaction, the respondent Nos. 2, 3 & 7 are inter-related with each other As per section 184 of Companies Act, 2013 and Articles of Association of the Company, and principles of natural justice, it is paramount duty of the Company especially the respondents to convene a shareholders’ meeting and take a decision as per law about the said transaction. Admittedly, the respondents have not taken any such decision and vague contentions have been made stating that the impugned transactions are in accordance with law. So the impugned sale deed dated 3-11-2015 is liable to be set-aside for the above reasons and consequently, the subsequent sale deed dated 4th November, 2016 executed by Mrs. G.Saraswathi Devi (Respondent No. 7) in favour of Respondent No. 8 (Vara Boomi Homes) is also liable to be set-aside.
The contention of the respondents that single act of execution impugned sale deeds contrary to law would not constitute acts oppression and mismanagement so as to take action u/ss. 241 & 242 of Companies Act, 2013 is not at all tenable and liable to be rejected. The contention of respondent that in the absence of clear allegations/contentions made by the petitioner in the petition, the petition itself is not maintainable is not all tenable and it is hereby rejected. The Tribunal is fully empowered to pass appropriate orders basing on the contentions/allegations made in the petition. At the same time, the Tribunal cannot interfere in the decisions/matters taken in its ordinary course of business.
The allegations of respondents against the petitioner with regard to unsound mind, professional misconduct/imprisonment etc. are not all tenable and not relate to the issue in ‘question. And these allegations are uncalled for. It is surprising to notice. It when the Company is facing serious allegations of acts of oppression and mismanagement in conducting the business in accordance with law, the respondents are resorting to personal allegations against the petitioner without substantiating the allegations made against them by the petitioner.
The above circumstances amply justify the Tribunal to exercise the powers conferred on it u/s 242 of Companies Act, 2013 so as to put an end to the affairs of Company as complained of. The impugned sale deeds are hereby declared as illegal and they are liable to set aside.
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2018 (2) TMI 847 - DELHI HIGH COURT
E-auction - non-deposit of the security money and request for “adjustments” - withdrawal of LOIs - Held that:- The impugned letters of the NDMC withdrawing the LoIs is based on justifiable grounds, inter alia: violation of the conditions of the NIT by the Petitioners (such as, non-deposit of the security money and request for “adjustments” not provided for in the NIT, in the case of Honshu), and engaging in business relationships with black-listed companies in violation of the conditions of the NIT.
No reason to interfere with the decisions of the NDMC. The decision to award a public contract is not premised merely on fulfillment of technical qualification and financial viability of the offer of a given bidder; the larger public interest is a necessary condition which invariably informs every decision of the executive authority or agency that is to award the contract. The vital public interest in ensuring that contracts are awarded to genuine bidders, and not to those who devise myriad devices to keep out true competition on one hand, and corner contracts- in this case, in relation to parking lots cannot be undermined. The NDMC thus had a vital interest in ensuring that the group of individuals, who adopted the stratagem of ensuing that they “rotated” the contracts, through different entities, which came to light in the financial linkage between them – as well as controls through the same set of people does not hamper the transparency of the bidding process. This linkage was also evident from other materials such as common email identities of some of the entities; common premises and, in some cases, common directors or individuals controlling the entities.
Further, the cancellation of the letters of intent by NDMC and thereby rejecting the tender bids of the Petitioners cannot be accepted to be arbitrary and malafide as such decision is based on concrete grounds, and opportunity was afforded to the petitioners to negate the same and make their stance when Show Cause Notices to that end were sent to them by the NDMC, as mentioned previously.
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