|
Advanced Search Options
Companies Law - Case Laws
Showing 1 to 20 of 47 Records
-
2021 (2) TMI 1363
Suspension of the period of limitation to file written statement - denial Order V Rule 1 and Order VIII Rule 1 of the Code of Civil Procedure 1908 - HELD THAT:- In the facts of the present case, the prescribed time to file written statement by the applying defendants had expired on March 8, 2020 or thereabouts, at least way before the order dated March 23, 2020 passed by the Hon’ble Supreme Court in Suo Motu Writ Petition (C) No. 3 of 2020 [2020 (5) TMI 418 - SC ORDER] came into being. The order dated March 23, 2020 has prescribed that the same is to be construed to be effective from March 15, 2020. The original period of 30 days to file written statement by the applying defendants had expired much before March 15, 2020.
The order dated March 23, 2020 of the Hon’ble Supreme Court and the subsequent orders with regard to the period of limitation has been explained by the Hon’ble Supreme Court in Sagufa Ahmed and others [2020 (9) TMI 713 - SUPREME COURT] by stating that, “what was extended by the above order of this Court was only ‘a period of limitation’ and not the period of limitation up to which delay can be condoned in exercise of discretion conferred by this statute”.
Section 16 of the Act of 2015 has laid down that, the provisions of the Code of Civil Procedure, 1908 shall, in their application to any suit in respect of a commercial dispute of a Specified Value, stand amended in the manner as specified in the Schedule. In sub-section (2) thereof it has specified that, the Commercial Division and the Commercial Court shall follow the provisions of the Code of Civil Procedure, 1908, as amended by the Act of 2015 in the trial of a suit in respect of a commercial dispute of a Specified Value.
The second proviso to Order V Rule 1 and the proviso to Order VIII Rule 1 as have been amended by the Act of 2015, has prescribed an outer limit of 120 days for filing of written statement by a defendant, from the date of service of the writ of summons on such defendant. This period of 120 days has been divided into two parts. The first part is of 30 days from the date of service of the writ summons on the defendant. In this period of 30 days, the defendant is entitled to file written statement in the suit, unquestionably - The original period of limitation for filing written statement has been prescribed to be 30 days with a condonable period of 90 days thereafter being available to the Court to condone the delay in filing the written statement within 30 days, provided the Court records the reasons for doing so and the defendant pays such costs at the Court may deem fit. The object of the Act of 2015 has been stated to provide for speedy disposal of high value commercial disputes.
The applying defendants have not ascribed any reason as to why the applying defendants could not file written statement within the period of 30 days from the date of service of the writ of summons on them. In the facts of the present case, it is found that the applications of the applying defendants for extension of time to file written statement to be bereft of material particulars. The applying defendants have not exhibited any promptness in having the written statements prepared and filed.
Application dismissed.
-
2021 (2) TMI 1311
Delay in appointment of Company Secretary of the company with a delay of 91 days - violation of the provisions of sub-section (4) of section 203 of Companies Act and rules made thereunder - HELD THAT:- The company and its officers, who have defaulted the provisions of section 203(1) r/w 203(4) of the Act for non- appointment of Whole-Time Company Secretary are liable for penalties under section 203(5) of the Act w.e.f. 28th August, 2019 to 26th November, 2019 - the penalty so imposed is commensurate with the aforesaid failure committed by the Noticee(s).
Attention is also invited to section 454(8)(ii) of the Act regarding consequences of non-payment of penalty within the prescribed time limit of 90 days from the date of the receipt of copy of this order in terms of the provisions of section 454(8)(i) of the Act - In terms of the provisions of sub-rule (9) of Rule 3 of Companies (Adjudication of Penalties) Rules, 2014 as amended by Companies (Adjudication of Penalties) Amendment Rules, 2019, copy of this order is being sent to Beam Global Spirits & Wine (India) Private Limited and all directors/officers in default mentioned herein above and also to Office of the Regional Director (Northern Region), Ministry of Corporate Affairs at New Delhi.
Application disposed off.
-
2021 (2) TMI 1278
Delay in the protection order - seeking enforcement of the order dated 25th October, 2020 passed by the Emergency Arbitrator - Section 17(2) of the Arbitration and Conciliation Act, 1996 read with Order XXXIX Rule 2A of the Code of Civil Procedure - HELD THAT:- This Court is of the prima facie view that the Emergency Arbitrator is an Arbitrator; the Emergency Arbitrator has rightly proceeded against the respondent No.2; the order dated 25th October, 2020 is not a nullity; the order dated 25th October, 2020 is an order under Section 17(1) of the Arbitration and Conciliation Act. This Court is of the view that the order dated 25th October, 2020 is appealable under Section 37 of the Arbitration and Conciliation Act. This Court is of the clear view that the order dated 25th October, 2020 is enforceable as an order of this Court under Section 17(2) of the Arbitration and Conciliation Act.
This Court is satisfied that immediate orders are necessary to protect the rights of the petitioner till the pronouncement of the reserved order. In that view of the matter, the respondents are directed to maintain status quo as on today at 04.50 P.M. till the pronouncement of the reserved order. The respondents are directed to file an affidavit to place on record the actions taken by them after 25th October, 2020 and the present status of all those actions, within 10 days - All the concerned authorities are directed to maintain status quo with respect to all matters in violation of the order dated 25th October, 2020 and shall file the status report with respect to the present status within 10 days of the receipt of this order. The other prayers of the petitioner shall be considered in the reserved order.
-
2021 (2) TMI 1273
Seeking for rectification of Register of Members of the Applicant Company - cancellation of excess shares allotted to Respondent No. 1 - section 59 of the Companies Act,2013, R/ w Rule 70 of the NCLT, Rules 2016 - HELD THAT:- The Applicant has not impleaded necessary Party i.e. RBI, on whose letter, the instant Application has been filed. The RBI has refused to accept the request of the Applicant - without approaching the Registrar of Companies, present Application has been filed contending that they have received no objection from Respondent No. 1 (Zephyr Peacock India) vide their letter dated 13thDecember, 2019. And they have also sought an order the requirement of advertisement to be published as per Rule 70 read with Rule 35 of the NCLT, 2016 be dispensed with and is not required to be convened. The Second Respondent could not examine as to whether the issue in question would fall within their purview/jurisdiction or not. Therefore, they have filed formal reply without adverting the main issue in question.
RBI, has refused to accept the request of the Applicant to accept the violation of FEMA Regulations by saying it is responsibility of Applicant to adhere to those Regulations - filing of instant Company petition is misconceived, not maintainable, and it is liable to be dismissed.
Petition dismissed.
-
2021 (2) TMI 1244
Implementation of approved Resolution Plan - HELD THAT:- When the CoC invoked the Bank Guarantee, the issuing Bank, i.e. Banque De Luxembourg Bank informed the CoC that it is a non enforceable guarantee since already the Resolution Applicant has already deposited ₹ 10,000,000 in lieu of the Bank Guarantee. The Counsel for the RA also submitted that the approval from the Regulatory Authorities were obtained and they are ready to implement the plan as approved by this Bench.
The Resolution Applicant assures that the balance sum of ₹ 10 crores will be infused within 2 weeks. No fruitful purpose presently would be served by invoking the Bank Guarantee. Since an amount of ₹ 10 crores has already been deposited against the Bank Guarantee, the CoC (State Bank of India) is directed to write to the Bank which have issued the Bank Guarantee for ₹ 10 crore releasing the Bank Guarantee - The CoC is directed to provide the Account details in which a sum of ₹ 10 crores would be deposited by the Resolution Applicant. The Registry is directed to list this Application on 19thFebruary, 2021 high on Board for compliance and further orders.
Application disposed off.
-
2021 (2) TMI 1242
Seeking resolution passed at the twelfth CoC meeting of the Corporate Debtor - rejection of Applicant’s request for extension of time to submit its resolution plan - seeking order to RP and the CoC to consider the resolution plan proposed to be submitted by the Applicant - HELD THAT:- This is a case where the CIRP had commenced on 21.11.2019, the first invitation to EoI was published on 18.01.2020. The last date of submission of resolution plan had been extended four times at the instance of prospective resolution applicants including the Applicant herein. Upon receiving an email from the RP, the resolution applicants, including the Applicant herein, had submitted their revised resolution plans before the eleventh CoC meeting was held on 03.09.2020 - it is seen that four opportunities were granted for submission of resolution plan vide dates 16.04.2020, 30.05.2020, 29.06.2020, 31.07.2020, and two opportunities were granted to submit revised resolution plan vide 19.08.2020 and 03.09.2020 to the Applicant herein. Despite several opportunities being granted, the Applicant herein has failed to submit its revised resolution plan.
The Applicant’s submission that the resolution plan could not be finalised due to lockdown and due to its directors, other than the authorised representative, being either infected or exposed to Covid-19 on various dates is also not very tenable since by the September 2020, remote working technologies were abundantly available, most of the proceedings had moved online, and the board meetings could also have been held online during the extended time already granted by the CoC.
This Adjudicating Authority is neither inclined towards quashing and setting aside the resolution passed at the twelfth CoC meeting of the Corporate Debtor held on 10.09.2020 to the extent that it rejects the Applicant’s request for extension of time to submit its resolution plan nor inclined towards directing the RP and the CoC to consider the resolution plan proposed to be submitted by the Applicant - Application dismissed.
-
2021 (2) TMI 1223
Transfer of the plots from M/s Purolator India Ltd. to a new company M/s Mahle Filter Systems India Ltd., without taking prior permission/consent of the lessor - violation of Clause- 2(v)(a) of Lease Deed executed between HIMUDA and M/s Purolator India Ltd. - HELD THAT:- Clause-2(v)(a) of Lease Deed mandates recovery of unearned increase for breach of this clause whereby a bar has been put on the lessee on selling, transferring, assigning or otherwise parting with possession of the whole or any part of Industrial Plots, except, in writing previous consent of parties. On change of name of ‘A’ from ‘X’ to ‘Y’, the person ‘A’ remains the same and, thus, property of ‘A’ also remains with ‘A’ but with changed name and, thus, change of name of ‘A’ from ‘X’ to ’Y’ does not amount to selling, transferring, assigning or otherwise parting with possession of the property of ‘A’ to some other person. Therefore, in present case, HIMUDA has wrongly invoked this condition for issuance of notices against the Petitioner-Company and passing impugned order dated 25.2.2010.
Present case is acquisition of another company by way of amalgamation/merger and change of name of acquiring company, i.e. Lessee to the name of acquired company. Clause-2(v)(a) of Lease Deed, nowhere prohibits the lessee from changing its name. It does not contemplate a condition to have permission, muchless previous in writing permission, to change the name of lessee or to acquire any other company by way of amalgamation - In present case, assets of lessee have not been transferred to any other company but assets of another company have been transferred in favour of lessee. Previous consent for filing amalgamation petition, acquiring any other Company by lessee is not warranted under Clause-2(v)(a). Had it been a merger of lessee in any other company alongwith its assets, provisions of Clause-2(v)(a) of Lease Deed might have been attracted, but factual matrix is not so in present case. Thus, action of HIMUDA is misconceived.
M/s Mahle Filter Systems India Ltd. is none else but the M/s Purolator India Ltd. and HIMUDA is not entitled to claim 50% unearned increase of ₹ 15,80,97,144/- alongwith 14% interest from the Petitioner-Company and, accordingly, Office Order dated 25.2.2010 (Annexure-1) is quashed - HIMUDA is directed to incorporate the change of name of M/s Purolator India Ltd. in its record of allotment of concerned Industrial Plots as M/s Mahle Filter Systems India Ltd. and concerned parties, including HIMUDA, are directed to execute all necessary documents, including Supplementary Lease Deed, if required so, under the Rules, Regulations and Law applicable in present case on or before 30.4.2021.
Petition allowed.
-
2021 (2) TMI 1191
Seeking to initiate contempt proceedings against the alleged contemnors for their wilful disobedience of Orders - Section 425 of Companies Act, 2013 R/w Sections 11, 12 & 14 of the Contempt of Courts Act, 1971 R/w. Rule 11 of the NCLT Rules, 2016 - HELD THAT:- Though notices were issued to the Respondent, none appeared for the Respondent. Therefore, it is not known whether the contemnor is financially solvent or not, in order to initiate contempt proceedings.
The Contempt Proceedings need not not be initiated - Contempt Petition is hereby disposed off.
-
2021 (2) TMI 1183
Pendency of proceedings before the High Court / NCLT and transfer of proceedings - HELD THAT:- The printout of the judgments in ACTION ISPAT AND POWER PVT. LTD. VERSUS SHYAM METALICS AND ENERGY LTD. [2020 (12) TMI 535 - SUPREME COURT] and FORECH INDIA LTD. VERSUS EDELWEISS ASSETS RECONSTRUCTION CO. LTD. [2019 (1) TMI 1442 - SUPREME COURT] may be produced before the Court by learned counsel and then will make submissions on this issue.
Put up on 17.2.2021.
-
2021 (2) TMI 1168
Application for urgent hearing - HELD THAT:- Learned Senior Counsel Mr. P.S. Raman for the Petitioner is present - Learned Counsel Mr. Nikhil Sakhardande and Learned Counsel Mr. P. Giridharan for R3 to R5 and R11 are present - Learned Senior Counsel Mr. P.H. Arvindh Pandian for R6, R7 and R10 is present.
Urgent application allowed.
-
2021 (2) TMI 1136
Oppression and mismanagement - seeking approval of the scheme for payment/contribution - contention of the Applicants/Respondents that in a Company Petition under Section 241 there can only be one Respondent Company is denied - HELD THAT:- It is quite apparent from a bare reading of the aforesaid provision of Section 241 that ‘Mismanagement’ means the affairs of the company are being conducted in a manner prejudicial to public interest or in a manner prejudicial to the interest of the company. Further, mismanagement is when a material change has taken place in the ownership of the company’s share or if it has no share capital in its membership or in any other manner whatsoever and that by reason of that change it is likely that the affairs of the company will be conducted in a manner prejudicial to public interest or in a manner prejudicial to the interests of the company.
In the Company Petition the Petitioner seeks approval of the scheme for payment/contribution and to direct changes in the shareholdings and directorships of the 7 companies based on a MoU dated 15.09.2016 entered between the parties with the aim to put an end to the cross holdings of the Coparceners and 100% ownership will devolve on the persons who are presently managing and in control of the Companies. Such reliefs cannot be granted by this Tribunal under Section 241/242 of the Companies Act, 2013. Thus, filing of the petition under Sections 241 and 242 seeking such reliefs is a misconceived exercise, as firstly, the Petitioner has to firmly establish the oppressive acts in which he has aggrieved or mismanagement involved in the Companies to which he has filed the Petition - the Company Petition does not raise a single act of oppression or mismanagement in the affairs of the Company i.e. prejudicial to the interests of the stakeholders/members or to the public.
Technical irregularities - HELD THAT:- Since the shareholding pattern and Board of directors of the Company varies from Company to Company a Petition against 7 different Respondent Companies is not permissible under Section 241 of the Companies Act, 2013. The Petitioner failed to provide the Articles of Association (AoA) and Memorandum of Association (MoA) of each Company which were arrayed as Respondents - The petitioner has filed the Company Petition against 7 Companies, who does not hold minimum threshold mentioned under Section 244 of the Companies Act, 2013. According to the Applicants the Petitioner is not a Shareholder in 3 Companies i.e. RBG Commodities, RBG Broking, RBG Vyapar.
Petition is not maintainable as it is not filed in compliance with Companies Act, 2013 and Rules by paying the appropriate fee prescribed under the Rules - application disposed off.
-
2021 (2) TMI 1088
Seeking approval for reduction of share capital - Section 66 of the Companies Act 2013 - HELD THAT:- The investments by shareholder in the equity share capital of the company are non- repatriable basis, hence the provisions of FEMA and the regulations made there under are not applicable to the company. The proposed reduction would not involve either diminution of any liability in respect to unpaid share capital or the payment to any shareholder, accordingly the provisions of Section 66(1)(a) of the Act will not be applicable. Further the net worth of the company shall remain positive and therefore not in any way have any adverse effect on the company’s ability to honor its commitments and obligations.
Notice has been served to income tax department. However, no objection has been raised by the Income tax department - In response to the observation made by RD in the report, the applicant has stated that the queries raised by the RD has already been dealt with vide compliance affidavit dated 25.02.2020. Further on 19.01.2021, during the hearing Ld. Counsel for RD made statement that they have perused the compliance affidavit and as per instructions the queries/objections of the department stands satisfied. Hence, they have no objection to the application being allowed.
That the reduction of the share capital of the above company as resolved by the Board Of Directors at the Extra Ordinary General meeting held on the13.12.2019 is allowed - That the minutes for reduction of share capital as specified under section 66(5) of the Companies Act, 2013 is be and hereby approved. That a certified copy of this order including the minute as approved, be delivered to the Registrar of Companies within thirty days of receipt of the order - Application allowed.
-
2021 (2) TMI 932
Oppression and Mismanagement - scope of arbitration clause under the MoU - seeking to direct independent forensic audit into the affairs of the Company from the F.Y, 2011-2012 till the F.Y. 2018-2019 by an appointing an independent auditor - Section 241 read with Section 242 of the Companies Act, 2013 or Sections 397 and 398 read with of the Companies Act, 1956 - HELD THAT:- In order to succeed in getting a reference of the dispute arose under Section 241-242, 244 read with Section 337, 341 of the Companies Act, 2013, the applicant would not only be liable to show that the entire gamut of the dispute falls within the purview of Arbitration Agreement but also the fact that the Company Petition is a sham and mischievous one which has been decked deliberately so as to gainfully sustain the plea of non-arbitrability of such dispute. There would also be a heavy burden cast upon the applicants to show that the Arbitration Agreement would bind the non-signatory respondents. In a case involving such complex question of law and facts, determination of the aforesaid aspect may call for deeper examination of the matter by this Tribunal. However, the applicant herein could not show that the entire gamut of he dispute falls within the purview of Arbitration Agreement.
In the matter of a winding up petition, the petitioner therein M/s Haryana Telecon Limited filed an application under Section 8 of the Arbitration and Conciliation Act, 1996, inter alia, contending that the High Court should refer the matter to arbitration. The Division Bench of the Hon’ble High Court dismissed the plea of the appellants stating that the question regarding the winding up of a company could not be referred to an arbitrator - In this case, the CP is filed for oppression and mismanagement in the Company. In addition to that serious fraud has also been alleged by the petitioners. Since those questions cannot be considered by an Arbitral Tribunal, the relief prayed for reference to an Arbitral Tribunal cannot be accepted.
It would be difficult to give an interpretation to Section 8 under which bifurcation of the cause of action that is to say the subject matter of the CP or in some cases bifurcation of the CP between the parties who are parties to the arbitration agreement and others is possible. This would be laying down a totally new procedure not contemplated under the Act. If bifurcation of the subject matter of a suit was contemplated, the legislature would have used appropriate language to permit such a course. Since there is no such indication in the language, it follows that bifurcation of the subject matter of an action brought before the judicial authority is not allowed. Such bifurcation of a suit in two parts, one to be decided by the Arbitral Tribunal and the other to be decided by this Tribunal would inevitably delay the proceedings. The whole purpose of speedy disposal of the dispute and decreasing the cost of litigation would be frustrated by such procedure. It would also increase the cost of litigation and harassment to the parties and on occasions there is possibility of conflicting judgments and orders by two different forums.
Application filed for referring the matter to Arbitral Tribunal in terms of Arbitration Agreement contained in clause 8 of Memorandum of Understanding (MoU) dated 31st March, 2007 is dismissed.
-
2021 (2) TMI 914
PIL - Seeking for a direction against respondents No. 1 to 10 therein to forthwith constitute a Multi- Disciplinary Investigation Team to investigate and prosecute respondent No.11 therein (Mr. A.H. Premji and his Associates) based on the representations dated January 30, 2020 and February 3, 2020 submitted by the petitioner - HELD THAT:- In the PIL filed before the Delhi High Court, petitioner has prayed for a direction against the Ministry of Finance, Ministry of Corporate Affairs and Reserve Bank of India to decide within four weeks that nature of actions required in law to be taken by them in respect of complaints dated November 1, 2016, March 14, 2017 and April 28, 2017. In paragraph No.14 of the said writ petition, petitioner has averred that the very same three Companies namely, Vidya Investment and Trading Company Pvt. Ltd., Regal Investment and Trading Company Pvt. Ltd. and Napean Trading and Investment Company Pvt. Ltd., were registered as non-Banking Finance Companies. In paragraph No.29 of the said writ petition, petitioner has averred that the said three Companies had given large sums of monies to a Private Trust.
It is important to note that petitioner's complaint dated March 14, 2017 upon which petitioner has relied is common in the PIL filed before the Delhi High Court and this writ petition - thus, there remains no doubt that petitioner is indulging in forum shopping on the very same cause of action. As held in Udyami2, this amounts to criminal contempt as the core issue in all these writ petitions is one and the same.
This writ petition is not only devoid of merits, but an absolute abuse of process of law. Though petitioner was forewarned, he chose to argue this writ petition as a stand-alone petition wasting the valuable time of this Court to deal with such frivolous cases. Therefore, imposition of punitive cost is necessary - Petition dismissed with cost.
-
2021 (2) TMI 892
Initiation of Contempt Proceedings - violation of the interim orders - oppression and mismanagement - removal of director - whether the Respondents are guilty of civil contempt - Section 2(b) of the Contempt of Courts Act, 1971 - HELD THAT:- In the case of NIAZ MOHAMMAD AND ORS. VERSUS STATE OF HARYANA AND ORS. [1994 (9) TMI 364 - SUPREME COURT], the Hon’ble Apex Court held that while the contemnors had not obeyed the judgment and released the salary, but this disobedience was not wilful so as to amount to a civil contempt and the Court drew a distinction between a Court executing an order and punishing for contempt
Thus, in order to hold a person guilty of civil contempt, it has to be established by the person alleging contempt that the alleged contemnor was guilty of a wilful breach or a wilful disobedience of an order or a direction, decree etc. of any Court. The emphasis, therefore, has to be on the word ‘’wilful’’. The word “wilful‟ means an act or omission which is done voluntarily and with an intent to do something which is forbidden by law or failing to do something which the law requires to be done.
In the present case, the petitioner could not establish that there is any wilful disobedience of the orders passed by this Tribunal on 27.09.2019. In the absence of any wilful disobedience, this Court cannot grant the relief sought for by the petitioner.
Petition dismissed.
-
2021 (2) TMI 891
Oppression and Mismanagement - regulation of conduct of the company’s affairs by directing Union of India to appoint two nominees of its choice as Members in the General Committee to monitor the affairs of the Club along with other General Committee Members and give suggestions to the General Committee - Section 242(4) of Companies Act, 2013 - HELD THAT:- It is indisputable that an order granting interim relief in terms of provision of Section 242(4) of the Act, 2013 is appealable. The scope of such appeal, however, is limited as there are no findings of fact recorded by the Tribunal in a regular trial in the Company Petition. This Appellate Tribunal, while sitting in appeal against grant of interim relief would be within its province to ascertain whether the Tribunal was right in recording the prima facie satisfaction on the basis of material on record. To put it otherwise, this Appellate Tribunal would be acting within its jurisdiction to consider whether the finding or conclusion in regard to existence of prima facie case has been reached on consideration of relevant material and if it is so, whether such finding is justified. The impugned order cannot be set aside without examining the material on record and recording a contrary finding qua the existence of a prima facie case. Examination of material relied upon for grant of interim relief being inevitable in the instant case, it has to be borne in mind that this Appellate Tribunal would be loath in interfering with the finding unless it is demonstrated that the view taken by the Tribunal is capricious or unreasonable and not merely because other view is possible.
On a plain reading of the provisions engrafted in Section 241, it comes to fore that while any member of a Company complaining of affairs of company being conducted in a manner prejudicial to public interest or in a manner prejudicial or oppressive to him or any other member or members or in a manner prejudicial to the interests of the company is entitled to apply to the Tribunal for relief, subject to its entitlement under Section 244, the Central Government is empowered to apply to the Tribunal for relief in case of mismanagement only if the affairs of the company are being conducted in a manner prejudicial to public interest. The Central Government is required to record its opinion as regards affairs of the company being conducted in a manner prejudicial to public interest. Recording of such opinion is a sine qua non for applying to the Tribunal under Section 241(2).
Formation of opinion by the Central Government in regard to affairs of Club being conducted in a manner prejudicial to public interest - HELD THAT:- In the instant case, it is not in controversy that the order dated 16th March, 2016 came to be passed by the Ministry of Corporate Affairs for inspection of the Club in terms of powers conferred under Section 206(5) of the Act, 2013. This order came to be passed upon receipt of complaints against the Club which, inter alia alleged ineligibility of ‘M/s. S.N. Dhawan and Company’ for appointment as Statutory Auditors of Club, irregularities in the management of the Club, demand by the Club for revision of registration fee with retrospective effect from some individuals etc. It is also not in dispute that the Inspectors held inspection from January, 2019 to July, 2019 for F.Y. 2012- 13 to 2017-18, in respect whereof report was laid before the Regional Director (Northern Region) of Ministry of Corporate Affairs, who placed the same before the Central Government on 5th August, 2019 - On a plain reading of the letter, it is clear that the Competent Authority has perused the material including the Inspection Reports and it is only upon consideration of such material that directions were given to file petition and take further action as spelt out in the letter. From the nature and character of directions given to Joint Director, it is unambiguously clear that the Competent Authority has applied its mind to the complaints and Inspection Reports. This is clearly gatherable from the directions which include filing of petition under Section 241/242 of the Act, 2013.
Sufficiency or otherwise of material for coming to such conclusion would not be subject of review by the Tribunal, more so when no malafides are attributed to Central Government which admittedly has not acted on its own motion but on the basis of complaints pouring in alleging gross irregularities including declining of membership to the aspiring candidates whose funds were allegedly utilized for the benefit of few chosen members, albeit with the blessings of the GC.
Existence of a prima facie case - HELD THAT:- It is abundantly clear that misuse of the Club meant for pastime and sports activities and denying access of membership even after accepting the enhanced membership fee and putting them in queue for decades together with utilization of the component of interest admissible on their invested membership fee for the benefit of permanent members and users seriously jeopardized interest of such prospective members and involved public interest. That apart, the interests of general public seeking membership but being made to wait for decades together with membership fee being held up and its interest component being utilized for the recreational and pleasurable activities of permanent members and users of the Club despite the Club being aware of the limited number of vacancies in membership occurring every year would be a predominant consideration concerning the rights of general public to gain access and seek membership of the Club, thus involving public interest - Therefore, the Club would not be operating within its province of activities by merely concentrating on recreational activities or pursuing the same as its major objective since the Club was constituted as a company registered under Section 26 of the Companies Act, 1913 and reference in perpetual lease deed to activities of the Club have to be interpreted as activities concerning the objects for which the company was formed. During the course of arguments, learned counsel for the Union of India vehemently stressed that barely 3% of total expenditure was being incurred by the Club towards sports activity and more than 60% was being spent on maintaining the recreational Club. He has also referred to the Inspection Report which unfolds specific acts of omission and commission attributed to the Club and would submit that the violation of the restrictions imposed by law, in the context of enjoyment of lease hold rights by the Club, are palpably injurious to public interest.
The stand taken by Respondent No.18 would corroborate some of the allegations in the Company Petition. The considerations which must be present to the mind of Tribunal at the conclusion of the Inquiry while recording the finding that the acts of oppression and mismanagement complained of are of a degree warranting winding up of the Company but that it would be unfair to any class of stakeholders to wind up the company and therefore, would justify only passing of suitable direction, would not weigh at the stage of grant of interim relief when only Interlocutory order may be required to be passed for regulating the conduct of the Company’s affairs. At this stage, interim relief can be granted on the basis of legal considerations justifying such grant to prevent continuance of or further prejudice to public interest in the affairs of the company. Having regard to the nature of allegations and the proof sought to be adduced in support of the same as coming to fore from the Inspection Reports, it can be stated without any fear of contradiction that the Union of India has been able to demonstrate that fair questions requiring probe have been raised in the Company Petition which would entitle it to the final relief of replacement of Directors of the Club with Government nominees to conduct the affairs of the Club in accordance with the provisions of law and its charter.
Appeal disposed off.
-
2021 (2) TMI 890
Approval of scheme of amalgamation - Section 230 read with Section 232 of the Companies Act, 2013 - HELD THAT:- As required under Rule 16 of the Companies (Compromise, Arrangements and Amalgamations) Rules, 2016 paper publication has been made in the Times of India (English) and Deepika Daily (Malayalam) on 28.02.2020 and that no objection received from any one against the Scheme of Amalgamation of the Petitioner Companies.
On due appreciation of the facts and circumstances involved in this case and considering, the report of the ROC that the Regional Director, Ministry of Corporate Affairs has not objected to the proposed Amalgamation between the Petitioner Companies, this Bench is of the opinion that the Scheme placed before this Bench on 18.02.2020, can be sanctioned. Hence, this Tribunal Sanction the Scheme of Amalgamation of M/s. Commodity Online (India) Limited (“the 1st Transferor Company) and M/s. Celebrus Capital Limited (“the 2nd Transferor Company) with M/s. Acumen Capital Market (India) Limited (“the Transferee Company”) and the Appointed Date of the Scheme is fixed as opening hours of 31st March, 2019 - application disposed off.
-
2021 (2) TMI 843
De-activation of the Director Identification Number - Section 164(2) of the Companies Act, 2013 - HELD THAT:- Similar issue decided in the judgment of the Gujarat High Court in [2019 (1) TMI 27 - GUJARAT HIGH COURT] where it was held that
The writ petition for challenge to the de-activation of the Director Identification Number are allowed. It was de-activated on account of dis-qualification in one company effecting Director Identification Number for the other companies. The opposite parties are directed to activate the Director Identification Number for use for other company. The opposite parties would however be at liberty to take legal action against the petitioner for any statutory default or non-compliance of the provisions of the Act of 2013.
-
2021 (2) TMI 753
Recovery action by secured creditors and financial institutions, who extended financial help to the original borrowers / guarantors - action under section 29 of the State Financial Corporation Act, 1951 - HELD THAT:- A part of the sale consideration was converted into loan and the said purchaser – M/s. Shree Industries Ltd. also defaulted and the said purchaser / borrower approached the BIFR / AAIFR under the provisions of the Sick Industrial Companies (Special Provisions) Repeal Act, 1985, as it then existed and while the proceedings were pending before the BIFR / AAIFR, a new law in the form of the Insolvency and Bankruptcy Code, 2016 came to be enacted by the Parliament and the proceedings regarding insolvency Resolution / Recovery from the defaulting corporate debtor on its winding-up were to be taken up by the National Company Law Tribunal (NCLT), which was constituted under the provisions of Section 408 of the Companies Act, 2013.
Section 408 of the Companies Act, 2013 stipulates that the NCLT shall exercise such powers and functions as may be conferred on it by the provisions of the Companies Act, 2013 or any other law for the time being in force. Under the provisions of IBC, 2016, the NCLT is designated and defined as the Adjudicating Authority and thus, has all the relevant powers to deal with these issues - In view of Section 408 of the Companies Act, 2013 stipulates that the NCLT shall exercise such powers and functions as may be conferred on it by the provisions of the Companies Act, 2013 or any other law for the time being in force. Under the provisions of IBC, 2016, the NCLT is designated and defined as the Adjudicating Authority and thus, has all the relevant powers to deal with these issues.
It appears that the Company, whose reference was pending before the BIFR / AAIFR, could make a reference to the NCLT under the provisions of the IBC, 2016, within 180 days from the date of commencement of the IBC, 2016, which is 28.05.2016 - If the said Company, whose reference is pending before the BIFR / AAIFR, does not make such reference to the NCLT, then what happens to the pending proceedings seems to have not been specified in the provisions of the IBC, 2016 or other relevant laws. Whether the abatement will become final or such pending proceedings could be referred to the NCLT, by any of the parties or by the Court, is a question for our consideration.
As prayed by Learned Counsel, time is granted to them to make submissions on the following points :-
(i) Whether any proceedings, in any manner, in respect of the Assets of the Company in question – M/s. Ganpati Pulp and Paper Mills Ltd or M/s. Shree Industries Ltd., are pending before the NCLT or not and if the proceedings are pending, the details and status of the same may be placed before the Court?
(ii) If no such proceedings are pending before the NCLT as of now, whether this Court can refer the entire matter to the NCLT and direct it to decide all the questions of law involved in the present case and the questions of facts, including the respective rights of the secured creditors, leaving it open to the parties to raise their respective claims / counter-claims and defences before the NCLT at this stage or not?
Put up on 09.02.2021 on the top of the Board, as prayed.
-
2021 (2) TMI 719
Approval of Scheme of Demerger - Section 230 read with Section 232 of the Companies Act, 2013 - HELD THAT:- As required under Rule 16 of the Companies (Compromise, Arrangements and Amalgamations) Rules, 2016 paper publication has been affected in two Newspapers, i.e., the Times of India (English) and Deepika (Malayalam) on 28.02.2020 and no objection has been received from any corner against the Scheme of Demerger of the Petitioner Company - this Bench is of the view that the Scheme of Demerger placed before this Bench on 18.02.2020, can be sanctioned. Hence, this Tribunal Sanction the Scheme of De-merger between M/s. Commodity Online (India) Limited (Demerged Company) with M/s. Celebrus Commodities Limited, 27/540, III Floor, EAK Towers, Main Avenue, Panampilly Nagar, Kochi- 682 036 (the Resultant Company/ Transferee Company) and the Appointed Date of the Scheme is fixed as opening hours of 31st March, 2019.
This Tribunal found that the Scheme of Demerger appears to be fair and reasonable and it is also not violative of any provisions of law and is not contrary to any public policy - All the assets and liabilities including taxes and charges, if any, and duties of the Demerger Company, shall, pursuant to Section 232 of the Company Act, 2013, be transferred to and become the liabilities and duties of the Transferee Company M/s Celebrus Commodities Limited.
Petition disposed off.
|
