|
Advanced Search Options
Companies Law - Case Laws
Showing 41 to 60 of 106 Records
-
2020 (10) TMI 699
Approval of Scheme of Amalgamation (Merger by Absorption) - Section 230-232 of Companies Act - HELD THAT:- Directions regarding holding and dispensation of various meetings issued - directions regarding issunce of various notices also issued - application allowed - scheme is approved.
-
2020 (10) TMI 698
Restoration of name of the Company namely M/s. SRK Sugars Private Limited in the Register of Companies maintained by the Registrar of Companies - section 252 of the Companies Act, 2013 - HELD THAT:- It is not in dispute that the Registrar of Companies is conferred with power U/s. 248(1) to strike off the Company, if the Company has failed to commence its business within one year of its incorporation or a Company is not carrying on any business or operation for a period of two immediately preceding financial years and has not made any Application within such period for obtaining the status of a dormant Company U/s. 455. However, Section 248(6) states that the Registrar of Companies, before finally striking off Company, has to satisfy himself that sufficient provision has been made for the realization of all amounts due to the Company and for the payment or discharge of its liabilities and obligations by the Company within a reasonable time, and, if necessary, obtain necessary undertakings from the Managing Director, Director or other persons in charge of the management of the Company. Though the impugned striking off the Company was in accordance with law, the Tribunal has to take into consideration of bonafide contentions of Petitioner seeking to restore name of Company, by taking a lenient view of the issue in the interest of justice and ease of doing business, instead of rigidly interpreting the law on the issue.
The Registrar of Companies, Karnataka, the Respondent herein, is ordered to restore the name of the Company in the Register maintained by the Registrar of Companies, Karnataka as if its name had not been struck off from the rolls of the Register with restoration of all consequential action by Registrar of Companies, which includes restoration of DINs of its Directors - name restored - application allowed.
-
2020 (10) TMI 697
Approval of Composite Scheme of Amalgamation and Arrangement - Sections 230 to 232 of the Companies Act, 2013 and other applicable provisions of the Companies Act, 2013 R/w the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - HELD THAT:- It has been stated by the Regional Director that, on a consideration of the materials on record, the Scheme appears to be fair, reasonable and is not detrimental against the Members or Creditors or contrary to public policy and the same can be approved - In his report the Regional Director, MCA has concluded that the Scheme appears to be fair, reasonable and not detrimental against the Members or Creditors or contrary to public policy and the same can be approved.
The procedure specified in sub-sections (1) and (2) of section 232 of the Companies Act, 2013 has been complied with. It appears that the amalgamation will enable the Transferee Company to consolidate its business operations, promote growth of the Transferee Company, result in economy of scales and reduction in overheads, help in optimal utilization of various resources, and the increased asset base of the Transferee Company would benefit the Transferor Companies and the Transferee Company, and be in the interest of all the creditors including the creditors of the Transferor Companies. Hence the Composite Scheme of Amalgamation and Arrangement, as approved by the Boards of the Petitioner Companies, can be sanctioned, as prayed.
The scheme is approved.
-
2020 (10) TMI 696
Sanction of Amalgamation Scheme - Sections 230 to 232 of the Companies Act, 2013 - HELD THAT:- From the material on record, the Scheme appears to be fair and reasonable and is not in violation of any provisions of Law and is not contrary to public policy - Since all the requisite statutory compliances have been fulfilled, Joint Company Petition filed by Petitioner Companies are made absolute in terms of prayer clause (a) thereof.
The Scheme is hereby sanctioned, and the Appointed Date of the Scheme is fixed as 1st August 2018. The Transferor Company is ordered to be dissolved without winding up - Application allowed.
-
2020 (10) TMI 695
Sanction of scheme of amalgamation - sections 230-232 of the Companies Act 2013 - HELD THAT:- From the material on record, the Scheme appears to be fair and reasonable and is not violative of any provisions of law and is not contrary to public policy - The Appointed Date of the Scheme is fixed as 1st April 2018 - The Transferor Company shall be dissolved without winding-up.
The Petitioner Companies are directed to lodge a certified copy of this Order and the Scheme with the concerned Superintendent of Stamps, within 60 working days from the date of receipt of certified copy of order, for adjudication of stamp duty payable, if any - The Petitioner Companies are directed to lodge a certified copy of this Order along with a copy of the Scheme with the concerned Registrar of Companies, electronically in Form INC-28 within 30 days from the date of issue of the order by the Registry, duly certified by the Deputy/Assistant Registrar of this Tribunal.
Application allowed.
-
2020 (10) TMI 694
Winding up order - Prevention of any withdrawals, transfer, disposal/diversion of funds or closure of the said accounts; to direct to disclose moveable and immovable properties/assets, including bank accounts, owned by the Company in India or anywhere in the world - restraint on Respondents from accepting further deposits/money from existing members or fresh deposits/money from the Public etc. - Whether the Central Government is empowered and justified to order investigation into the ownership of any Company, under provisions Companies Act, 2013 in public interest? - Whether the Petitioner proved that affairs of the Company are being conducted in a fraudulent manner or the Company was formed for fraudulent and unlawful purpose or the persons concerned in the formation or management of its affairs have been guilty of fraud, misfeasance or misconduct in connection therewith and that it is proper that the company be wound up? - Whether the Company is given reasonable opportunity by the Petitioner to disprove the case of Petitioner for wind up of the Company?
HELD THAT:- THE findings in Investigation Report in question, has clearly indicted the Directors of Company leading to filing the instant Petition, apart from initiating prosecution before Special court, matter was referred to various statutory Authorities like Central Board of Indirect Taxes and Customs, Chief Secretary, Govt. of Karnataka; State Level Co-ordination Committee for taking appropriate action. The Company has not filed any Application seeking further modification of Interim orders dated 07.03.19 and 09.07.2019, after withdrawal of Company Appeal by the Respondent, before the Appellate Authority, however, except seeking to permit it to pay statutory dues. Therefore, the interim orders dated 07.03.19 and 09.07.19 passed by the Tribunal made final as it requires no modification since the Respondent could not plead any extenuating circumstances to vacate the interim order as the main Company Petitions are also being disposed of finally and Official Liquidator would take care of affairs of Company. Therefore, it would be just and proper to restrain the Company and its Directors from operating any affairs of Company including operating its Bank Accounts.
The Central Govt. and the Registrar of Companies and the Inspectors appointed, have followed all extant provisions of Companies Act and rules made thereunder including principles of natural justice in ordering investigation, conducting investigation in question. However, the Directors of the Company, though appropriate notice given under the provisions of Companies Act, they have failed to avail it - The Company is established exclusively for the benefit of three Promotee-cum- Directors-cum- shareholders, and their Agents, and hardly any service provided to its customers except few customers, out of paltry sum of money remains, after apportioning the Deposits by way of collecting Membership fee, among themselves by way of huge Dividend/salaries/commission/awards to themselves and their Agents. The contention of the Respondent that investigation Report in question is inconclusive, and it gives no cause of action for the Petitioner to file the instant Petitions is not at all tenable - Therefore, various contentions/allegations raised by the Respondents are not all tenable, and thus they are liable to be rejected.
The incorporation and conducting of business of the Company itself was with unlawful and fraudulent objects, and its affairs are being conducted in total violations of extant provisions of Law - it would be just and proper to order winding up the Respondent Company, without prejudice to the actions being initiated by other Statutory Authorities - company is ordered to be wound up - application allowed.
-
2020 (10) TMI 693
Rectification of the Register of Members of the Respondent Company - restraint on Respondent Company from holding the Annual General Meeting or Extraordinary General meeting - Section 59(1) of the Companies Act, 2013 - Whether the Company by exercising paramount lien can sell off the shares of a shareholder for recovering the dues? - HELD THAT:- The Respondent Company in the instant petition will fall under the category of "unpaid seller" who can exercise the above rights only. Nothing more. It is settled law as decided by the Hon'ble Supreme Court of India in its judgement in TRIVENI SHANKAR SAXENA VERSUS STATE OF U.P. AND OTHERS [1991 (12) TMI 285 - SUPREME COURT] a lien is only a right to retain which is rightfully and continuously in possession belonging to another until the claims are satisfied. It can be acquired either by contract or by operation of law. It is the right of retention of goods - in the absence of delineated process to exercise paramount lien, the Respondent Company can exercise lien to the extent of retention of goods; in this case shares which can be extendable payable to the shareholder - the submissions made by the Respondent Company cannot be agreed upon.
Whether the action of 1st Respondent Company is backed up by any contractual agreement to recover the 'rental dues' by auctioning the shares? - HELD THAT:- In the absence of a written agreement a documentary evidence to support their action, the very action of the Respondent's company was without any basis. Any of the unilateral action by one party, will not bind the others and will be set aside. Further the contention that the shops are under benami holding and not conforming to the Income Tax Act is not supported by any valid notice from income Tax authorities or any credible report to support this argument. Even if we go by submissions of learned PCS for respondents, we have not come across any steps taken by the respondent company to regularise the position in respect of the shops which are the property of respondent Company. During the arguments the bench asked to the PCS representing the company whether the company has taken any steps to get the shop vacated by the occupants for their rental arrears. The respondents submitted that they have not taken any action in this regard.
Whether due process is followed by the Company in auctioning and allotting the shares to a 3rd party? - HELD THAT:- The Articles of Association of the company is silent about the process to be followed to ensure paramount lien. However, in the Respondent Company, the lien was exercised for recovery of rental dues by auction the shares. Here the Respondents exercised right to lien to recover the arrears of rent from the shareholder who has not agreed to execute rental/lease agreement - In the instant petition, the Respondent auctioned the shares without the consent of shareholders and without original shre certificate and transfer form in their possession. The earlier action appears to the illegal and not as per the Companies Act 2013 - answered in negative.
The company has no right to auction and allot the shares to the third parties ignoring the right of fully paid up shareholders. The rental dues claimed by the respondent company is not supported by rental/lease agreement which is agreed by shareholder - Petitioner is declared as the legitimate equity share holder under Folio No. 41 - application disposed off.
-
2020 (10) TMI 692
Winding up of Company - failure to make payment of outstanding dues due to financial difficulty - section 433 (e) & (f) R/w 434 & 439(1) (b) of the Companies Act, 1956 -HELD THAT:- The main Company Petition was filed before the Hon'ble High Court of Karnataka, as early as 18.12.2015, wherein it was not properly prosecuted resulting into the dismissal of the Company Petition, even for non-compliance of office objections. The Petitioner also could not serve notice of the Petition on the Respondent till date, even after transferring the matter to Tribunal, the Petitioner has not taken any steps to comply with the rule 5(1) of the TPP rules, 2016 till date. The last date for complying with the promise of the court was 15.07.2017. Admittedly the Petitioner has not taken any steps to comply extend provisions of the CPP rules till date. Therefore the Petitioner is liable to dismiss for non-compliance of extend rules after transfer from the Hon'ble High Court of Karnataka.
The case was transferred to this Tribunal by Hon'ble High Court of Karnataka vide proceedings dated 18.11.2019. Accordingly, the case was scrutinized by the Registry of this Tribunal and found that only one set of paper was available, and thus another set was s required to be filed on the record, and the Petitioner has to compliance provisions as contemplated in the case. However the Petitioner failed to comply and was not present when the case was listed for admission on 27.12.2019. However, the Petitioner has not taken any steps to comply office objections raised by the Registry and also not served the copy of the Petition on other side. The Petitioner failed to submit the required information as required under Section 9 of the Code till date. Therefore, the instant Company Petition abates and thus it is liable to be rejected, by reserving liberty to the Petition to file appropriate Application/Petition in accordance with the provisions of the IBC 2016, and rules made there under.
Petition is disposed of as abated by reserving liberty to the Petitioner to file appropriate Application/Petition in accordance with the extant provisions of the IBC 2016, and rules made there under.
-
2020 (10) TMI 691
Restoration of name of the Company on the Register of Companies maintained by the Registrar of Companies - non-filing of Annual Returns and Balance Sheets before the ROC - Section 252(3) of the Companies Act, 2013 - HELD THAT:- In the year 2011 Government of India planned to conduct the single All India Entrance Test for medical students from 2012 which encouraged the promoters of the company to start the company in this regard. In-between, in the matter of MEDICAL COUNCIL OF INDIA VERSUS CHRISTIAN MEDICAL COLLEGE VELLORE & ORS. [2016 (4) TMI 1396 - SUPREME COURT] the Association of Private Medical Colleges went to Hon'ble Supreme Court against the Central Government's Order and the verdict was given in favour of the Association of Private Medical Colleges because of which the Company had no option but to stop the business. However on 11.04.2016 the Hon'ble Supreme Court reversed their own judgment i.e. "Medical Council of India Vs. Christian Medical College Vellore & Ors." and allowed the Central Government to conduct the single Entrance Test for Medical students. Now, there seems to be bundle of opportunities for the Company due to revision in the decision by the Hon'ble Supreme Court. It is also stated that the petitioner Company is getting enquiries and also negotiating with its prospective clients regarding the possible projects, wherein the petitioner company is confident of getting projects and also considerable revenue from the same. It is further stated that the petitioner company has also finalised its financial statements & Annual returns for the financial year end 2012 to 2018.
The Applicant Company intends restart its business, and it would be proper to restore its name in the Register of Companies. Further, the Company has undertaken to file all the overdue Balance Sheets and Annual Returns for the periods of default, within 30 days of restoration - Company petition is allowed by directing the Registrar of Companies to restore the name of the Company in the Register of the Registrar of Companies, as if it was not struck off, subject however, to its making statutory compliances within a period of 30 days and payment of a cost of ₹ 25,000/-.
Application allowed.
-
2020 (10) TMI 641
Rectification of the Register of Members of the Respondent Company - Restraint on Respondent Company from holding the Annual General Meeting or Extraordinary General meeting - Whether the Company by exercising paramount lien can sell off the shares of a shareholder for recovering the dues? - HELD THAT:- The Respondent Company in the instant petition will fall under the category of "unpaid seller" who can exercise the above rights only. Nothing more. It is settled law as decided by the Hon'ble Supreme Court of India in its judgement in TRIVENI SHANKAR SAXENA VERSUS STATE OF U.P. AND OTHERS [1991 (12) TMI 285 - SUPREME COURT] a lien is only a right to retain which is rightfully and continuously in possession belonging to another until the claims are satisfied. It can be acquired either by contract or by operation of law. It is the right of retention of goods - in the absence of delineated process to exercise paramount lien, the Respondent Company can exercise lien to the extent of retention of goods; in this case shares which can be extendable payable to the shareholder - thus, they have no right to unilaterally sell the shares which are in possession of the shareholder, without the consent.
Whether the action of 1st Respondent Company is backed up by any contractual agreement to recover the 'rental dues' by auctioning the shares? - HELD THAT:- We have not come across any agreement showing that shops under occupation of the Petitioner is given on lease to them by the Respondent Company. As averred by the counsel for the Respondent company, company was collecting service charges from the shops as no agreement was in place. In the absence of a written agreement a documentary evidence to support their action, the very action of the Respondent's company was without any basis. Any of the unilateral action by one party, will not bind the others and will be set aside - During the arguments the bench asked to the PCS representing the company whether the company has taken any steps to get the shop vacated by the occupants for their rental arrears. The respondents submitted that they have not taken any action in this regard.
Whether due process is followed by the Company in auctioning and allotting the shares to a 3rd party? - HELD THAT:- The Articles of Association of the company is silent about the process to be followed to ensure paramount lien. However, in the Respondent Company, the lien was exercised for recovery of rental dues by auction the shares. Here the Respondents exercised right to lien to recover the arrears of rent from the shareholder who has not agreed to execute rental/lease agreement - In the instant petition, the Respondent auctioned the shares without the consent of shareholders and without original shre certificate and transfer form in their possession. The earlier action appears to the illegal and not as per the Companies Act 2013. As such the answer to the third point is also negative.
Accordingly, the company has no right to auction and allot the shares to the third parties ignoring the right of fully paid up shareholders. The rental dues claimed by the respondent company is not supported by rental/lease agreement which is agreed by shareholder - thus, the entire acts of the company to auction the shares appears to be malfide and with ulterior motives.
The Petitioner is declared as the legitimate equity share holder under Folio No. 53 - it is hereby directed that the rectification of the Register of Members of the Respondent Company by re-entering the total number of 100 equity shares belonging to the Petitioner in the share register of the company and further ordering to restore the total shareholding of the Petitioner as it is existed prior to 08.02.2019 forthwith - Respondent Company is restrained from conducting tender for sale of 100 shares from allotting or effecting transfer of any shares belonging to the petitioner without his express consent to any members or non-members till rectification of share register - Respondent Company is directed to file the Register of Members after carrying the rectifications as per this order, with Registrar of Companies within a period of one month - respondent company is directed to pay ₹ 25,000/- to the petitioner towards the costs and damages sustained by the petitioner in this regard.
-
2020 (10) TMI 640
Approval of the Scheme of Amalgamation - Sections 230 and 232 of the Companies Act, 2013 read with the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 and the National Company Law Tribunal Rules, 2016 - HELD THAT:- Upon considering the approval accorded by the members and creditors of the Petitioner companies to the proposed Scheme, and the report filed by the Regional Director, Northern Region, Ministry of Corporate Affairs, report filed by the official liquidator and also as no objection from any quarter against the Scheme has been received; there appears to be no impediment in sanctioning the present Scheme - sanction is hereby granted to the Scheme under Section 230 to 232 of the Companies Act, 2013.
Scheme approved - application allowed.
-
2020 (10) TMI 639
Direction/clarification from this Court for implementation of final order - Serious differences as well as clash of interest among the directors of the company which resulted in deadlock in function of company and the production in the manufacturing unit - HELD THAT:- The document(s) in question and Forms, which includes E-Form, Annual and Financial Statement of the Respondent Company, these are subject matter of the present Company Petition shall not be taken on record or acted upon for any purpose of the Respondent Company until its AGM/EGM is duly convened and approved such document(s)/Form(s)/Statement(s)/E-Form (s)/E-Statement(s) and duly ratify its filing with requisite majority in such AGM/EGM till such period the Office of the ROC can declared its E-Form/document(s) as "NTBR", so as to avoid further complication in the matter. As, we have already clarified in our previous order dated 10.10.2019 that ROC is not required to convene such AGM/EGM, but only to facilitate the same and such meetings is required to be convened by the Respondent Company through the Petitioner and the Advocate Observer appointed by this Court. In such proposed AGM/EGM the ROC shall depute its "OBSERVER" who may be an Officer of the Office of the ROC or may be an Independent Professional. The Observer shall produce their independent report and to be submitted to the Office of the ROC and/or if necessary to this Court for further course of action to be taken in the matter.
In such proposed AGM/EGM the Independent "Observer" appointed by this Court (vide our order dated 27.06.2019 ) i.e. Mr. Harmish Shah, Advocate alongwith Independent Director through Bank of Baroda and Facilitator(s)/Chartered Accountant(s) appointed by this Court shall also remain present and participate in the discussion of meeting but without having right of voting. A report in this respect to be prepared and to be submitted by the Advocate Observer to this Court as well as to the Office of the ROC.
Application disposed off.
-
2020 (10) TMI 596
Ownership of shares - time limitation to claim ownership - The applicant, it appears, discovered, in and about April-June 1997 (after a gaop of about 4 years), that its name, as the shareholder of the Company, does not find mention in the annual return filed by the Company with the ROC. - whether the plaintiff could have filed a suit for declaration claiming a right in the subject 500 shares, based on the allegation that it was defrauded, given the aforementioned events?
HELD THAT:- The period of limitation provided in Article 59 of the 1963 Limitation Act [which is 3 years] can commence only when the fraud was discovered in line with the provisions of Section 17 of the said Act. The expression “first become known to him” appearing in Article 59 in the context of an action filed based on a fraud employed by the defendant could only mean when the fraud was first discovered or could have been discovered by the plaintiff by employing reasonable diligence.
It is important to bear in mind as to whether fraud in actuality has been committed or not can only be known after a pleading, in that behalf, is made which is tested, based on evidence led by parties - it is only when the fraud got unravelled in August-September 2010 could the material particulars as to how the fraud was employed have been pleaded as is the requirement under Order VI Rule 4 of the CPC.
The date concerning the discovery of fraud is crucial as the limitation under Article 59 in line with Section 17 of the 1963 Limitation Act would commence only from that date. The argument that fraud with reasonable diligence could have been discovered earlier is untenable in the instant case as there nothing on record to demonstrate that the plaintiffs were aware of the fact that the stamps affixed on the transfer deeds produced in Court were not printed around the same time when the transfer deeds were purportedly executed.
The suit is prima facie within limitation. The plaint cannot be rejected on the ground of limitation without testing the averments made in the plaint and the documents appended thereto at the trial.
Whether or not the transfer deeds concerning 260 shares are genuine documents? - HELD THAT:- Section 17 of the 1963 Limitation Act [which is pari materia to Section 18 of the 1908 Limitation Act], embody the fundamental principles of justice and equity, whereby, a party should not be prevented, from taking recourse to legal proceedings, when certain facts and materials are deliberately concealed from it. The opposite party, which has acted fraudulently, should not be allowed to use the statute of limitation as a shield where fraud is employed.
Therefore, to close the instant suit, at this juncture, by allowing the captioned application, would cause, to my mind, serious impediment in the examination that the Court would be called upon to conduct about the genuineness of the documents-in-issue i.e. the transfer deeds.
The prayer made in the captioned application lacks merit and hence deserves to be dismissed - application dismissed.
-
2020 (10) TMI 595
Disqualifications for appointment of a Directors - Deactivation of DIN - whether a prior notice is required before disqualifying a director under Section 164(2) of CA 2013? - HELD THAT:- When Section 164(2) of CA 2013 is read with Rule 14 of the AQD Rules, it appears that, if Form DIR-9 is filed, the Registrar of Companies could rely on the names and addresses of directors that were provided by the Defaulting Company. Such reliance may not, however, be bereft of controversy especially when neither statute nor rule sets out the criteria for the preparation of such list. In any event, in all the cases at hand, such a list was not provided because the Defaulting Company did not file DIR-9. In such case, Rule 14(3) provides for resort to Section 2(60) of CA 2013 - it is evident that the statutory prescription is generic except with regard to the managing director and whole-time director and, consequently, insufficient to fix responsibility and attribute the default to a specific set of directors. As a corollary, an enquiry would be necessary. However, the scope of enquiry under Section 164(2) would vary from that under Section 164(1). In specific, the first question under Section 164(2) would be whether the company concerned has defaulted in fulfilling the obligations specified in Clauses (a) or (b). As regards Section 164(2)(a), the learned ASGI contended that this determination would be fairly straight forward. While this contention has some basis, such determination may not necessarily be devoid of challenge as would be evident from the following. As per the proviso to Section 96 (1) of CA 2013, the first annual general meeting (AGM) may be held by a company within nine months from the last date of the preceding financial year and the subsequent AGM's within six months from the last date of the preceding financial year.
The time limit for filing the financial statements runs from the date of AGM and Section 137(1) of CA 2013 provides that the same should be filed within 30 days from the date of the AGM. Consequently, the prescribed time limit for filing the financial statements would vary depending on the date of AGM and, as a corollary, the date of default in filing the financial statements would also vary, including with reference to whether it is the first AGM or a subsequent AGM. It could become even more complicated if the AGM is not held as the time limits would run from the last date prescribed for holding the AGM in such situation. As regards the annual return, as per Section 92(4) of CA 2013, it is required to be filed within sixty days of the AGM. Once again, the date of default would vary depending on the date of AGM as also if the AGM is not held.
Rules 9 and 10 deals with the application for allotment of DIN. Rule 10 (6) specifies that the DIN is valid for the life time of the applicant and shall not be allotted to any other person. Rule 11 provides for the cancellation or surrender or deactivation of the DIN. It is very clear upon examining Rule 11 that neither cancellation nor deactivation is provided for upon disqualification under Section 164(2) of CA 2013. In this connection, it is also pertinent to refer to Section 167(1) of CA 2013 which provides for vacating the office of director by a director of a Defaulting Company - it follows 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.
The publication of the list of disqualified directors by the ROC and the deactivation of the DIN of the Appellants is hereby quashed - Appeal allowed.
-
2020 (10) TMI 594
Demand of amendment in the company petition - Applicant wants 11 types or categories of amendments/enlargements, of which the number of instances, where these amendments/enlargements occur, runs into 108 such instances of amendments being proposed - HELD THAT:- As admitted by the Applicant, who presently controls the management of Respondent No.1 Company, the Respondent No. 1 Company M/s. Montreaux Resorts Pvt. Ltd. through present Applicant has filed another petition against the same Respondents in 2016 U/S. 241-242 of the Companies Act, 2013 for acts of oppression and mismanagement, wherein an application seeking interim relief is pending consideration before this Bench, admittedly with parallel/similar prayers against the same Respondents.
On overall view of the entire scenario amongst the parties, litigations pending, issues involved, and also long pendency of present main petition, wherein Hon'ble Supreme Court and Hon'ble NCLAT have categorically directed NCLT to ensure an early disposal of the present main petition No. 114/2007, in our view a practical approach to minimize the entire process of litigation needs to be adopted.
If the amendments are to be allowed at this stage, these will no doubt change the entire original petition - Application allwoed.
-
2020 (10) TMI 498
Oppression and Mismanagement - transfer of shares - Section 241-242 of the Companies Act, 2013 - principles of quasi partnership - HELD THAT:- Admittedly, it is closely held private limited company of two persons in the form of quasi partnership and on perusal of the record it is found that there is a dispute with regard to the agreement(s) dated 11.08.2017 whereby the Petitioner as well as the Respondent No. 2 have arrived at an understanding to settle and part with on certain terms and conditions. However, dispute arose with regard to non-compliance or deficiency in compliance of the conditions of the said agreement by Respondent No 2.
There are no documents on record so as to show that the shares of the Petitioner in question have been transferred to the Respondent No. 2 or any other person(s) after following the due procedure relating to the transfer of shares as claimed by Respondent No 2. There are no concrete evidence or proof filed to show that the payments have actually been made to the Petitioner in the form of cash receipt or bank statement or such other document against the transfer of the shares in favour of the Respondents. Thereby, it is established that the Petitioner still holding 50% of the share capital of the Respondent No. 1 Company and is entitled for his rights as the shareholder of the company. On perusal of the record, it is found that Petitioner annexed Annexure-C i.e. list of shareholders as on 31.03.2018 at page No. 58 of the petition which shows that Petitioner is holding 18,35,500 Nos. of shares and the Petitioner is eligible to file the present petition.
For an application under sections 241-242, the act which is contrary to law may not necessarily and by itself support the inference that the law is/was violated with mala fide intention or that such violation was burdensome, harsh and wrongful. There must be continuous act on the part of the members or majority shareholders, continuing upto the date of petition, showing that the affairs of the Company were being conducted in a manner oppressive to some of the members. The conduct must be burdensome, harsh and wrongful. In the instant case, it is found that there is a lack of trust and confidence between the members/shareholders which would not be enough unless the lack of confidence springs from oppression by members in the management of the Company's affairs. Such oppression must involve an element of lack of probity or fair dealing to the members in the matter of his propriety as a shareholder.
There are several irregularities in the procedures adopted by the Respondent (s) in compliance of the provisions of the Companies Act, 2013. The Petitioner has established a case of oppression and mismanagement in the affairs of the Respondent No. 1 Company and therefore, the present petition has merit and deserves to be allowed.
The Respondent No. 1 Company is brought back to the original position as it was prior to the date of execution of agreement i.e. 11.08.2017 - The resolution (s) dated 30.06.2017, if any, is declared as void and shall not have any effect relating to the appointment of the Respondents No. 3 and 5 as the directors of the Respondent No. 1 Company - appointment of Respondents No. 3, 4 and 5 are declared as illegal and set aside. The Tribunal/Bench hereby orders removal of the said Respondents as the directors of the Respondent No. 1 Company.
Petition allowed in part.
-
2020 (10) TMI 497
Approval of Scheme of Arrangement - Sections 230 to 232 read with Section 66 and other applicable provisions of the Companies Act, 2013 - HELD THAT:- Various meetings dispensed with - various meetings are held and notices issued - the scheme is approved - application allowed.
-
2020 (10) TMI 496
Approval of the Scheme of Amalgamation - Sections 230 to 232 of the Companies Act, 2013 r/w the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - HELD THAT:- The Regional Director, Northern Region, MCA, to whom notice was sent has filed his affidavit and has filed its affidavit dates 12.01.2018 wherein it is submitted that the Transferor and Transferee Companies are regular in filing statutory return. It is further noted that no prosecution has been filed and no investigation/inspection proceedings are conducted against any of the Petitioner Companies. It is further observed that the objects of the Petitioner companies is different and any change in the main object and the name of the Transferee Company shall be automatic and compliances are to be made as per the provisions of Companies Act, 2013 and Rules - The Official Liquidator (hereinafter referred as "OL") has filed a report dated 18.01.2018, wherein it is submitted that he has not received any complaint against the Scheme from any person/party interested in the Scheme in any manner and that the affairs of the Transferor Companies do not appear to have been conducted in a manner prejudicial to the interest of its members, creditors or to public interest.
The report of Income Tax Department (hereinafter referred as "ITD") had been filed on 07.02.2018 in which it is submitted that with regard to the Transferor No. 4 Company that the revenue receipts are nil for the assessment Year, while borrowing is huge i.e. in Crores. It is noted that the Petitioner has replied to the objections raised by the ITD and submitted that the Transferor Company No. 4 is facing losses from last few years and therefore has decided to merge with the group companies. Further, it is submitted that as per the audited financials there are no borrowings which run in crores and that the transferor No. 4 Company has filed balance sheet and profit and loss as on 31.03.2017 - It is further noted that the Petitioner Companies have duly complied with all the Accounting standards applicable thereto. The Petitioner Companies have obtained necessary certificates from their respective Auditors certifying that the Accounting Treatment under the Scheme is found to be in order and conform with the Accounting standards.
On the Scheme becoming effective, the Transferor Company shall be dissolved without any further act, deed or instrument, without going through the process of winding up and shall be succeeded by the Transferee Company - There is no additional requirement for any modification and the Scheme of Amalgamation appears to be fair and reasonable and is not contrary to public policy and not violative of any provisions of law. All the statutory compliances have been made under Sections 230 to 232 of the Companies Act, 2013.
The Company Petition is allowed and the Scheme of Amalgamation annexed with the Petitions is hereby Sanctioned.
-
2020 (10) TMI 446
Maintainability of petition - Oppression and mismanagement - Fraudulent transfer of shares - section 241 of the Companies Act, 2013 - petitioner is shareholder of company or not - name to be entered into the registers of members or not - validity of board meetings on December 10, 2014, January 6, 2015 and January 16, 2015 - appointment of respondents Nos. 4 to 7 as directors of the company.
Whether the company petition is maintainable? - Whether the petitioner is a shareholder of the company? - HELD THAT:- The petitioner has not been able to establish the nexus between respondent No. 2 and Data Pro. Though memorandum of transfer in respect of those shares indicate that they have been transferred to the petitioner, the petitioner has not been able to prove satisfactorily that the shares of the company were held by respondent No. 2 and they were duly transferred under section 56 of the Act to him. The board resolution dated March 7, 2014 does not speak of transfer of any shares by respondent No. 2 in favour of the petitioner. Therefore, the transfer of 53,69,520 + 11,50,000 (65,19,520) can only be approved. The contention of the respondent that the petitioner did not clear the whole of the loan amount would not have any consequence since as per the declaration dated November 6, 2011 the petitioner was entitled to transfer of share in his favour on clearing of 50 per cent. of the outstanding dues of the bank. There is no dispute that the petitioner has cleared more than 50 per cent. of the bank dues. As against 1,85,00,000 shares, the petitioner is held to have owned 65,19,520 shares. The petitioner accordingly is share- holder of the company holding 35.24 per cent. of the paid-up share capital - Issue is answered in the affirmative.
Whether his name deserved to be entered into the registers of members? - HELD THAT:- The name of the petitioner ought to have been entered in the register of members of the company in terms of section 2(55) read with section 88 of the Act - answered in the affirmative.
Whether the conduct of the board meetings on December 10, 2014, January 6, 2015 and January 16, 2015 is valid? - HELD THAT:- Admittedly the annual general meeting of the company was not held within that date. The petitioner as an additional director of the company did not take any steps to see and ensure that the annual general meeting was held on or before September 30, 2014. The plea that he was ignorant of legal provisions to that effect would not come to his rescue. Directorship having not been ratified by the annual general meeting on or before September 30, 2014 he cannot claim to hold the office of the director of the company beyond that date. Therefore, the petitioner was not required to be notified of any subsequent meetings. His absence or lack of notice in the board meetings dated February 1, 2014, January 6, 2015 and January 16, 2015 would accordingly have no consequence. The board meetings could not be invalidated on that score - answered in the negative.
Whether appointment of respondents Nos. 4 to 7 as directors of the company is valid? - HELD THAT:- Respondents Nos. 4 to 7 were appointed as directors of the company in the annual general meeting held on February 21, 2015. Notice of the annual general meeting was required to be given in less than clear 21 days either by writing or through electronic means in terms of section 101(1) of the Act. No material is placed on record by the respondents that a notice of the meeting was sent to the petitioner who held 35.24 per cent. of shares in the company. The meeting held on February 21, 2015 accordingly cannot be held to be valid. Consequently, actions taken therein would necessarily be invalid. Appointment of respondents Nos. 4 to 7 as directors accordingly would not be valid - answered in the negative.
Despite holding 35.24 per cent. shares in the company the name of the petitioner was not shown in any of the annual returns as required under section 92(1) of the Act, subsequent to March 7, 2014. The investment made by the petitioner in the nature of clearing of liabilities of the company with the bank have not been shown in the annual returns. But the mala fides of the auditor cannot be inferred merely from the fact that the payments made by the petitioner were not reflected in the annual returns. Therefore, the allegation that respondent No. 8 perpetrated fraud cannot be accepted - The petitioner is declared as the owner of 65,19,520 shares of respondent No. 1- company. His name shall be entered in the register of members and the register shall accordingly be rectified. The annual general meeting dated February 21, 2015 is held to be invalid.
Appeal allowed in part.
-
2020 (10) TMI 397
Sanction the scheme of amalgamation - sections 230 to 232 of the Companies Act, 2013 read with the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - HELD THAT:- In his report, the Regional Director, MCA has concluded that the scheme appears to be fair, reasonable and not detrimental against the members or creditors or contrary to public policy and the same can be approved. The scheme appears to have been proposed for better performance management, for greater clarity in roles, responsibilities and performance objectives of the individual specialised divisions at the corporate as well as individual level for key management. On a consideration of the facts of the case as mentioned in the preceding paragraphs, which are not elaborated here again to avoid duplication and repetition, we are satisfied that the procedure specified in sub-sections (1) and (2) of section 232 of the Companies Act, 2013 has been complied with, and hence the scheme of amalgamation, as approved by the boards of the petitioner companies, can be sanctioned.
The scheme is sanctioned.
|
