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Companies Law - Case Laws
Showing 1 to 20 of 59 Records
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2020 (2) TMI 1659
Declaration, perpetual injunction and possession - edifice of the suit is constructed on the premise that the suit properties were owned by Kalpita Builders Private Limited and could have been alienated only with the consent of two Directors or the majority of Directors - HELD THAT:- Section 430 is brought into force with effect from 01st June, 2016, vide Notification No. SO 1934(E), dated 01.06.2016. The submission of the plaintiff, that the jurisdiction of the Civil Court is barred, is on the premise that in view of the coming into force of Section 430, the jurisdiction of the Civil Court is barred, since the NCLT is empowered to deal with and decide the issues framed by the trial Court.
It is not even the case of the plaintiff that the Civil Court did not have the jurisdiction to decide the suit. Indeed, the plaintiff invited the Civil Court to decide the legality and validity of the sale deeds executed by Respondent No.1 in favour of Respondents No.2 to 19 and agreement to sell in favour of defendant no.20. The submission is, that the amended provisions of the Act came into force during the pendency of the appeal and, therefore, the appellate Court ceased to have jurisdiction over the matter - the provisions, on which the plaintiff is heavily relying, came into effect from 01.06.2016. Even according to the plaintiff, the Civil Court did have the jurisdiction when the suit came to be decided. If this be so, the fact that Section 430 of the Act has come into effect during the pendency of the appeal, would not necessitate return of the appeal for being presented before the NCLT.
Petition dismissed.
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2020 (2) TMI 1653
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - Non-Performing Assets - existence of debt and dispute or not - HELD THAT:- The loan what ought to have been a secured loan of the banker, has become unsecured loan. And by no means the applicant banker could have recovered the lawful dues. The applicant had registered FIR against the Corporate Debtor and its Directors in respect of the illegal cheating of the Corporate Debtor under Section 120B/420 of Indian Penal Code (IPC) and dated 25th April, 2015, same is pending. The cheques which was paid towards the repayment of the loan, were dishonoured by the respondent's banker with an endorsement "funds insufficient". Hence, the applicant bank filed CS No. 00007/2015 before Chief Metropolitan Magistrate at Calcutta against the Corporate Debtor and its Directors, the same is pending on the file of the Hon'ble District Court and another in 13th M.M. Court CC no: 418064/2014 the same are pending on the file of the Hon'ble District Courts.
The debts and the default are proved beyond reasonable doubt.
The application filed by the Financial Creditor under Section 7 of the Insolvency & Bankruptcy Code, 2016 for initiating Corporate Insolvency Resolution Process against the Corporate Debtor, M/s. Emerald Mineral Exim Private Limited is hereby admitted - Moratorium declared.
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2020 (2) TMI 1646
Condonation of delay of 201 days in filing the Company Petition - unavoidable causes or not - seeking for approval of the Scheme of Amalgamation - HELD THAT:- Perusal of the Application shows in paragraph '4', which is the cause / reason as pointed out by the Counsel for the Applicant for the delay in filing the Petition. However, perusal of the circumstances resulting in the delay in filing the Company Petition has failed to clearly explain the delay caused in filing of the Company Petition - the reasons given cannot be considered as unavoidable causes in filing the Company Petition.
Petition dismissed.
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2020 (2) TMI 1625
Striking off name of the Companies from the ROC - HELD THAT:- It is noted that the objections have been filed by the ROC, Respondent-3, Respondent-6 and Respondent-7. The pleadings are complete. The matter is posted for making final submissions.
List on 30.4.2020.
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2020 (2) TMI 1610
Calling for records/documents - It is stated that in spite of clear notice, the respondents have not furnished any of the documents/record as mentioned - HELD THAT:- In the circumstances and in view of the non-furnishing of the information by the respondents No. 1 to 5, issue notice to all the respondents to show cause as to why the matter shall not be referred to the Insolvency and Bankruptcy Board of India to enable the Board to act in terms of Section 236 read with Section 70 of the Code.
The respondents No. 1 to 5 may file any further reply in response to the show cause notice within two weeks after service on the other side - List on 11.03.2020.
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2020 (2) TMI 1594
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - secured financial creditor or not - HELD THAT:- On perusal of this application, it appears this bank advanced loan to the home buyers of the corporate debtor. In view of it, now the bank is asking this Bench to pass an order declaring him a secured financial creditor of the corporate debtor and also to allow him to sit in the CoC.
This bank cannot be called as a creditor to the corporate debtor because the loans are given to the home buyers of the corporate debtor - there are no merit in this application, hence dismissed.
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2020 (2) TMI 1590
Grant of status-quo ante - transfer of shares - HELD THAT:- Despite an advance copy of the Petition being served upon the Respondent as well as the date of moving this Petition also informed to the Respondents in advance, none for the Respondents is present. In the circumstances status- quo as of today to be maintained in relation to the shareholding pattern as well as in relation to the properties of the 1st Respondent Company. Let the copy of this order be duly communicated to the Respondents by the Petitioner within a period of week from today and the reply of the Respondents also be filed within a period of four weeks from today.
Post this matter on 03.04.2020.
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2020 (2) TMI 1572
Transfer of an amount (Corporate Debtor funds) within two years before commencement of CIRP - professional fee paid to R1 to organise a loan of ₹ 20 Crore for the business needs of the Corporate Debtor or not - fraudulent intent present or not - burden to prove - HELD THAT:- The money was transferred from the Corporate Debtor to R1. From the records of the corporate debtor there is no material to say that these monies were transferred as commission towards the consultancy services rendered by R1. There are no supporting entries from the books of the Corporate Debtor to prove that this money was paid to R1 towards business purpose. As to the monies shown as paid to R1 by the Corporate Debtor, if at all, monies were paid in relation to the services rendered by R1, the Corporate Debtor should have deducted TDS from those amounts but no information or details reflecting TDS was deducted from the monies paid by the Corporate Debtor to R1 - Normally when an agreement is entered into, both the parties enter into agreements signed by them on behalf of themselves or on behalf of Companies or Partnerships, as the case may be.
A case falls within the ambit of Sec. 43 of the Code when repayment was made to the Creditor within the look back period for putting such creditor in a beneficial position than it would have been in the event of distribution of assets made in accordance with Section 53 of the Code - RP says that R1 has not provided any consultancy services to the Corporate Debtor, it was only payments made to R1 to cause unlawful gain to R1 based on sham transactions causing loss to other Creditors. When material is absent to prove that the transaction is genuine, the Respondents shall prove that transaction is not fictitious and they must prove that R1 is entitled for commission and that entitlement was cleared by the Corporate Debtor.
In this case, no material is there to prove that R1 acted as commission agent to facilitate the Corporate Debtor to secure loan from SREI and also to secure Purchase Order from Regen. As long as this aspect is not proved, it cannot be said that, the relation in between the Corporate Debtor and R1 is debtor and creditor relationship. If any money has been shown as siphoned from the Corporate Debtor Accounts, as to those monies, if the Corporate Debtor failed to show it as payment to a Creditor, then such payment has to be considered as a fraudulent transaction falling within the ambit of Section 66 of the Code - related party concept comes into existence to look into, when transaction taken place in the period beyond one year look back period and before lapse of two year look back period. As to section 66, look back period and relative or related party concepts will not come into picture, this Bench need not ascertain whether it is in compliance of Section 43 elements. In companies, management is answerable to every transaction, it has to explain and prove every transaction is based on business needs and part of business, mere oral saying will not make any transaction genuine unless supported by material proof, which normally happens in every transaction. In this case, it is shorn of such supporting material.
As to the party not in the management of the Corporate Debtor, that is R2, though he is not part of the management of the Corporate Debtor, he knows that R1 has no claim against the Corporate Debtor, therefore he ought to have refunded it to the Corporate Debtor as soon as it came to the account of R1. Had it been genuine transaction, it must have reflected tax payments and tax deductions and R1 must have disclosed that it has been providing similar services to others, but no such material placed - for R3 having not stated that he is not the cause for release of the funds from the Corporate Debtor to R1 and R1 having not proved that this money has come to his partnership firm towards commission, it is held that the impugned transfer of the Corporate Debtor funds to R1 is for fraudulent purpose.
R2 and R3 jointly and severally are directed to contribute ₹ 65 lac to the Corporate Debtor within fifteen days from hereof - application allowed.
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2020 (2) TMI 1565
Fabrication of photocopy of a document purported to be an MoU, during the pendency of the petition - invocation of provisions of Section 340 Cr.P.C. - HELD THAT:- This Bench is of the opinion that provisions of section 340 would not apply to the facts of this case, as this MoU did not form the basis of any adjudication. To initiate prosecution, it is essential that the decision is based on a fabricated document and the Court having relied upon the same has arrived at an erroneous conclusion. Since the alleged fabricated MoU was not a basis of adjudication, no enquiry is required under Section 340 Cr.P.C.
The CA under 340 Cr.P.C. is dismissed - Be listed before the Id. Registrar on 25th February, 2020 for enquiring whether the photocopy of the MoU given to the IO is different from the one filed by the Petitioner.
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2020 (2) TMI 1547
Directions regarding holding of meeting of Secured Creditors of the Transferee Company - HELD THAT:- The Chairperson's report dated 06.02.2020 is taken on record. Further, in terms of the order of the Tribunal in FOUR SEASONS RESTAURANT PRIVATE LIMITED AND ORS. VERSUS PINKY FOREX TOURS AND TRAVELS PRIVATE LIMITED [2019 (12) TMI 1532 - NATIONAL COMPANY LAW TRIBUNAL, JAIPUR BENCH] the counsel for the Applicant has pointed out compliance in terms of holding of meeting of Secured Creditors of the Transferee Company" Counsel for the Applicant has expressed his client's willingness to file 2nd motion petition in the matter.
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2020 (2) TMI 1541
Transfer of shares - Respondent No. 2, 3 and 4 will purchase all the shares of the petitioners 1 & 2 at the rate of ₹ 331/- per share - Sections 397 -398 of the Companies Act, 1956 - HELD THAT:- It is stated that, the petitioners shall issue and sign the Share Transfer Forms having details of number of shares & share certificates and the counsel for the petitioner will hand over the same to the counsel for the respondents as and when the cheques are given. Thereby, petitioners agreed to withdraw all pending cases/complaints/suits etc against all the respondents at various Courts/forums on the date of signing the Memorandum of Settlement - It is further stated that in case of any financial liability that may fall upon the Company on account of the non-compliances during the period when the petitioners were whole time Directors, it shall be proportionately shared among the members of the Board as on the date of non-compliance, in proportion to their shareholding after exhausting legal remedies.
As agreed between the parties, this settlement memo was filed and prayed to close this Company Petition - Petition allowed.
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2020 (2) TMI 1534
Seeking extension of the period of CIRP - work could not be completed due to non-cooperation from the promoters of the Corporate Debtor - HELD THAT:- It is apparent from the materials available on record that the Applicant could not perform his duties properly due to the non-availability of records and non-cooperation from the promoters of the Corporate Debtor. The CoC is of the opinion that the Corporate Debtor can be led to a successful resolution. It is therefore imperative that the period of CIRP is extended.
The period of CIRP is extended by 60 days with effect from 07.03.2020. The Applicant and the CoC are directed to take all possible steps under the Insolvency and Bankruptcy Code, 2016 and Rules made thereunder to bring about a successful resolution of the Corporate Debtor - Application is allowed without contest.
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2020 (2) TMI 1532
Permission to transfer the monies payable to the workmen, to the Provident Fund Commissioner concerned - HELD THAT:- The monies are required by the workmen now. Their need is immediate. Therefore, respondent no. 2 is directed to pursue the matter with HDFC Bank to ascertain the status of the investments as well as to see as to how the same could be statutorily transferred to the Provident Fund Commissioner at the earliest for disbursal to the workmen. Respondent no. 2 shall also follow up with UCO Bank and RBI apropos the amount of ₹ 30 crores alongwith interest accrued. An affidavit of compliance shall be filed by respondent nos. 2 and 3 before the next date.
There is no threat of the eviction of the workmen from their current places of residence. No further orders are required in this regard.
List on 25.03.2020.
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2020 (2) TMI 1529
Demand of differential premium - Execution of lease agreement with the petitioners in respect of subject property - formal/non-formal transfer - whether the Respondents were justified in demanding the payment of 30% Differential Premium when they had decided to transfer the subject property in favour of Petitioner No.1? - HELD THAT:- It is clear that the Corporation was aware that the subject property was transferred from M/s. Lanvin Textile Mills to Petitioner No.2 as Promoter of the Proposed Private Limited Company. In this transfer, the Differential Premium, as demanded, was already paid to the satisfaction of the Corporation.
The Respondents had agreed to transfer the subject property in favour of Petitioner No.2 describing him as Promoter of Proposed Private Limited. As per their directions, Petitioner No.1 Company was formed. Therefore, transferring the plot from the Proposer of a Private Limited Company i.e. from Petitioner No.2 to the incorporated Private Limited Company i.e. Petitioner No.1, would definitely fall within the category of ‘formal transfer’ - The circular dated 12.5.1998 does not mention that the formal transfer can be only between the original allottee and the transferee.
The transfer from Petitioner No.2 to Petitioner No.1 was in the nature of ‘formal transfer’ and hence as per their own circular dated 12.5.1998, the Respondents are not entitled to demand and recover 30% of the Differential Premium. The said amount, arrived at by making adjustment towards the payment already made, amounted to ₹ 27,69,400/- is deposited by the Petitioners in this Court. Therefore, they are entitled to withdraw the same with accrued interest if any.
The Petitioners are permitted to withdraw the amount of ₹ 27,69,400/- deposited in this Court with accrued interest if any - Petition disposed off.
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2020 (2) TMI 1523
Non-Speaking order - unsecured financial creditor or not - HELD THAT:- There are no ground to interfere with the impugned order passed by the Tribunal - The appeal is, accordingly, dismissed.
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2020 (2) TMI 1519
Approval of scheme of amalgamation - Sections 230(1) and 232(1) of the Companies Act, 2013 - HELD THAT:- Various directions regarding holding and convening of various meetings issued - direction regarding issuance of various notices also issued.
The scheme is approved - application allowed.
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2020 (2) TMI 1479
Approval of Scheme for Amalgamation - sections 230 to 232 of the Companies Act, 2013 - HELD THAT:- Since all the requisite statutory compliances have been fulfilled, the Company Scheme Petition filed by the Petitioner/ Transferor Company made absolute in terms of prayer clauses at 49 (i) of the said Petition.
The Petitioner/Transferor Company and Non-Petitioner/Transferee Company are directed to file a certified copy of this order along with a copy of the Scheme with the concerned Registrar of Companies within 30 (thirty) days from the date of the receipt of this order, as per the relevant provisions of Companies Act, 2013 - A certified copy of this order along with a copy of the Scheme shall be lodged with the concerned Superintendent of Stamps for the purpose of adjudication of stamp duty payable, if any, on the same, within 60 (sixty) days from the date of receipt of this Order.
The Effective Date of the scheme is the date on which the certified copies of the orders of this Tribunal sanctioning this scheme are filed with both the Registrar of Companies, Mumbai and New Delhi, whichever is later. It is clarified that for the period between the Appointed Date and the Effective Date, the business of the Petitioner/ Transferor Company shall be carried on by the Petitioner/Transferor Company in trust and for and on behalf of the Non-Petitioner/ Transferee Company - The Petitioner/Transferor Company shall be dissolved without winding-up after this Scheme becomes effective.
The scheme is sanctioned - application allowed.
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2020 (2) TMI 1467
Approval of scheme of Amalgamation - Sections 230 to 232 and other provisions of the Companies Act, 2013 R/w the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - HELD THAT:- Various directions for holding and convening of various meetings issued - various directions regarding issuance of various notices in regard to the meetings, also issued.
Application disposed off.
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2020 (2) TMI 1462
Seeking an order appointing an Independent Auditor out of the names suggested by the Applicants and respondents - seeking an order directing the 1st respondent to file before the Register of Companies, the requisite statutory forms including those relating to the appointment of the 1st applicant as the Managing Director, change in the designation of the 1st respondent from ‘Managing Director’ to ‘Director’ and removal of the 2nd and 3rd respondent from the directorship of the 4th respondent company - HELD THAT:- CA Dr. Santha Kumar K., residing at TC39/2738, Sree Priya, Koorkkanchery, Thrissur, is appointed from the panel of names suggested by the applicant and CA Suresh T. N., M/s Salitha & Suresh, 40/7383, Meenakshi Estate, Rajaji Road, Ernakulam, from the panel of names suggested by the respondents, as two independent auditors to individually undertake true and fair value of shares of the Respondent Company as on 07.12.2017. The Auditors are directed to submit the valuation report within a period of 45 days from the date of this Order to the Respondent Company. Thereafter, the entire process delineated in the NCLT, Chennai Order dated 07.12.2017 should be complied within 12 weeks by the parties - The fee for valuation of respondent company will be borne by the respondent company itself.
Shri.K.J.Paul, Respondent No.1 in this I.A is directed to file the requisite statutory forms immediately, including those relating to the appointment of the 1st applicant as the Managing Director, change in the designation of the Respondent No.1 from ‘Managing Director’ to ‘Director’ and removal of the Respondent No.2 and Respondent No.3 from the directorship of Respondent No.4 Company. He is also directed to participate in the Board Meetings in future and extend his co-operation for the smooth conduct of business of the respondent company.
Application disposed off.
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2020 (2) TMI 1410
Disqualification of Directors - Deactivation of DIN - Striking off the name of the Company from the Register of the Companies - non filing of annual returns for a continuous period of three years - Section 248(1) of the Companies Act 2013 - vires of the proviso under Section 167(2)(a) of the Act which was inserted to the Companies (Amendment Act 2017) - HELD THAT:- Identical issue decided in the case of KHUSHRU DORAB MADAN VERSUS UNION OF INDIA [2020 (1) TMI 1212 - MADRAS HIGH COURT] where it was held that In the present writ petition, the three financial years 2014-2015, 2015-16 and 2016-17 have been completed and since annual returns / financial statements have not been filed, disqualification automatically follows and when disqualification is incurred, deactivation of Director Identification Number also automatically follows. The DIN number can exist only during the life time of post of Directorship and not for the entire life of the individual. Issuing a prior notice would be of no avail and would only be an empty formality since the provision of law is clear on this aspect.
Petition is dismissed.
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