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2021 (7) TMI 1446
Permission for withdrawal of petition - resolution plan of respondent no.4 company approved - petitioners seeks leave to withdraw the present petition with liberty to assail the impugned order on merits before the appropriate appellate forum - HELD THAT:- The petition is, accordingly, dismissed as withdrawn with liberty as prayed for.
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2021 (7) TMI 1402
Territorial jurisdiction of the Court to entertain this writ petition - the office has taken an objection with regard to the territorial jurisdiction as the respondent No.1/National Company Law Tribunal is situated at Ahmedabad and outside the territorial jurisdiction of this Court - HELD THAT:- Undisputedly, no original order has been passed by any authority in the State of Madhya Pradesh which was taken to the NCLT at Ahmedabad by the aggrieved party. Merely because the petitioner is situated in Madhya Pradesh or the fact that the NCLT at Ahmedabad which passed the impugned order on account of notification passed by the Central Government on 31.01.2020 was now vested with all the cases which would otherwise have been tried by the NCLT at Indore, cannot give jurisdiction to this Court, in view of Article 227 of the Constitution, where High Courts have been vested with the authority of superintendence over all Courts and Tribunals within the territory to which its power extends, precludes this High Court from entertaining the present writ petition on the ground of lack of territorial jurisdiction.
As the original order itself has been passed by the NCLT at Ahmedabad and there being no other order which has been passed by any authority in Madhya Pradesh by which the petitioner herein was aggrieved by, it would only be the High Court of Gujarat that would have jurisdiction to entertain the present petition.
This petition is dismissed for want of territorial jurisdiction.
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2021 (7) TMI 1398
Allegation of involvement in alleged anti-competitive practices and conduct - deep discounting - preferential listing - sale of private label brands through preferential sellers - exclusive tie-ups - violation of Section 3(1) r/w Section 3(4) of Competition Act - Section 26(1) of the Competition Act, 2002 - HELD THAT:- The record of the case reveals that respondent No. 2 - Delhi Vyapar Mahasangh filed an information on 24.10.2019 to CCI under Section 19(1)(a) of the Act of 2002 against both the appellants alleging that the appellants are involved in alleged anti-competitive practices and conduct, such as deep discounting, preferential listing, sale of private label brands through preferential sellers and exclusive tie-ups, alleged to be in violation of Section 3(1) read with Section 3(4) of the Act of 2002. The CCI based upon the information received by it, has passed an order dated 13.1.2020 in Case No. 40/2019 directing an investigation under Section 26(1) of the Act of 2002 by the Director General.
In the considered opinion of this Court, the CCI certainly have a jurisdiction to take appropriate steps to curb the anti competitive practices and a detailed mechanism is provided under the Act itself to ensure that no anti competitive practices are undertaken. The appellants, it appears, do not want to participate at all in the proceedings initiated by the CCI and do not want the CCI to proceed ahead in accordance with law. This Court really fails to understand as to why the appellants do not want to participate in the enquiry, in which the appellants will have an opportunity to produce the material before the Director General on the basis of which, after hearing the appellants and after following the due process of law, the Director General shall be able to conduct an enquiry.
In order to achieve the object of the Act of 2002, the question of interference does not arise. The appellants do have a right to participate in the proceedings and/or under an obligation to produce all the material as desired during the enquiry by the Director General. The appellants want to crush the proceedings at a preliminary stage in a similar manner like quashing of FIR as prayed in a petition filed under Section 482 of the Cr.P.C. Earlier, almost in every criminal case, petitions were filed for quashment of the First Information Report (FIR) and in those circumstances, the Hon'ble Supreme Court has laid down parameters for quashment of the criminal proceedings/FIR in the case of State of Haryana and others v. Bhajan Lal and others, [1990 (11) TMI 386 - SUPREME COURT] - Hon'ble Supreme Court in the the case has held that unless and until the show cause notice is vague or has been issued by an authority not competent to do so, interference can be done in the matter. In the present case, the order passed by the CCI directing an enquiry is the first stage of initiating process under the CCI Act and the enquiry is yet to commence. The appellants do not want to participate in the enquiry for the reasons best known to them.
The present case is not a case where the mala fides are alleged against the Regulator, nor there is any jurisdictional infirmity. The order passed under Section 26(1) is neither an adjudication, nor determinative, but merely an inquisitorial, departmental proceedings in the nature of a direction to the Director General to make an investigation. It is neither a judicial nor a quasi judicial proceedings.
It is apparent from a reading of the CCI order dated 13.1.2020 that the prima facie case was in existence and keeping in view the prima facie case, an enquiry has been ordered by passing an order under Section 26(1) of the Act of 2002 by the CCI. In the considered opinion of this Court, the learned Single Judge was justified in holding that the order passed by the CCI does not warrant an interference - The issue relating to deep discounting, preferential listing and exclusive tie-ups will be looked into in depth at the time of enquiry by the Director General only when various agreements executed by the appellants are brought to the notice of the Director General. At this stage, the petitions/appeals filed are premature and deserves to be dismissed. The learned Single Judge was justified in holding that the order passed by the CCI under Section 26(1) is an administrative order and the findings arrived at by the learned Single Judge does not warrant an interference.
The order was passed by the CCI on 6.11.2018 directing closure of the case under Section 26(2) of the Act of 2002. The present order has been passed by the CCI under Section 26(1) of the Act of 2002 on 13.1.2021, meaning thereby after a lapse of considerable long time it has been passed and in a competitive market various agreements are executed, new practices are adopted every day and merely because some other issue has been looked into by the CCI earlier, it does not mean that on the ground of res judicata the CCI cannot look into any information subsequently against the appellants. The principle of res judicata has no application in the matter under the Act of 2002 in the peculiar facts and circumstances of the case. The market place is by its very nature a constantly evolving and dynamic space - In the considered opinion of this Court, an expert body cannot be crippled or hamstrung in their efforts by application of technical rules of procedure.
In the considered opinion of this Court, by no stretch of imagination, the process of enquiry can be crushed at this stage. In case, the appellants are not at all involved in violation of any statutory provisions of Act of 2002, they should not feel shy in facing an enquiry - The writ petitions filed against the order dated 13.1.2021 and the present writ appeals are nothing but an attempt to ensure that the action initiated by the CCI under the Act of 2002 does not attain finality and the same is impermissible in law as the Act of 2002 itself provides the entire mechanism of holding an enquiry, granting an opportunity of hearing, passing of a final order as well as appeal against the order passed by the CCI. In the considered opinion of this Court, the present writ appeals filed by the appellants are devoid of merits and substance, hence, deserve to be dismissed and are accordingly, dismissed.
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2021 (7) TMI 1330
Maintainability of application - HELD THAT:- In the course of hearing, it is noticed that some CAs are listed for hearing today but it is also noticed that the main Company Petition is of the year 2016. Therefore, instead of taking up the CAs, it is deemed proper to take up the main Petition along with these CAs.
Both the parties are directed to share the soft copy of these documents with the Registry and upload the soft copy on the DMS within two weeks from today. List the matter on 8th September, 2021.
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2021 (7) TMI 1317
Injunction from continuing with the competitive business of the Respondent Company - injunction from approaching the customers and suppliers of the Respondent Company for soliciting business of the Respondent Company - restraint from acting detrimental to the interest of the Respondent Company - HELD THAT:- It is noted that the said interim relief as prayed for is same as final relief and imprudent to consider without full perspective of the case. In view of the allegations and cross allegations, besides apparent noncooperation, it is in the interest of the company and the parties that this matter be heard and decided. This is particularly important in view of the fact that admittedly there was a settlement between the parties in August 2020 which seems to have derailed. In subsequent listing of the case, we have directed the parties to file the replies in both CPs as well as in pending CAs and also to furnish written arguments so that the matter can be heard and disposed of accordingly.
The matter stands admitted.
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2021 (7) TMI 1316
Approval of Resolution Plan - Section 31(1) of I&B Code - direction to Resolution Professional to continue to conduct his hold as Resolution Professional of the Corporate Debtor - implementation of Resolution Plan in the manner set out in the resolution plan - approval of appointment of Monitoring Agent (MA) and Monitoring Committee (MC) from the date of approval of resolution plan - valuation of the assets in relation to the Corporate Debtor - HELD THAT:- From reading of the extracted minutes from the 2nd CoC meeting would reveal the fact that the appointment of the Valuers in relation to the Corporate Debtor was deliberated in the meeting of the CoC and that the name proposed by the IRP was accepted by the CoC and accordingly the valuation was done by those valuers - it is seen from the minutes of the 7th CoC meeting that the third valuer Mr. Vaidya Raman was appointed by the Resolution Professional who visited the premises and conducted the valuation to the non-core assets.
In the present case, it is seen from the minutes extracted from the 6th CoC meeting that RP further apprised the CoC members, that due to significant difference in the value of land and building submitted by the valuers appointed by IRP, the RP had to appoint third valuer in accordance with provisions of Regulation 35 of CIRP Regulations, 2016. Accordingly, the third valuer has submitted his report before the RP and accordingly the fair value and the Liquidation value in relation to the Corporate Debtor was arrived at by the Resolution Professional - it is clear that the RP has arrived at a Fair Value and the Liquidation Value based on the average of all the three valuers and the same has been done in accordance with Regulation 35 of the IBBI (IRPCP) Regulations 2016. Further, the valuation certificate dated September 2019 relied on by the promoter/suspended Director of the Corporate Debtor would be of no relevance as the same was not done in accordance with the Regulations framed under the IBC, 2016.
This Adjudicating Authority finds that there was no error committed by the IRP/RP in so far as appointing the registered valuers in relation to the Corporate Debtor, nor there was any error on the valuation being submitted by those Registered valuers and as a consequence thereof, the objections as raised by all the objectors in relation to the valuation of the Corporate Debtor are overruled - application dismissed.
Non-consideration of Section 12A Application - HELD THAT:- A perusal of the minutes would show that the promoter of the Corporate Debtor has proposed for a 12A settlement only at the 9th CoC meeting, when the Resolution Plan of the Resolution Applicant was about to be put to vote. Further, it is also seen that the Petitioning Creditor viz. Tourism Finance Corporation of India (TFCI) was also kept in dark about the 12A proposal by the promoters and also flagged an issue stating that the letter has been addressed to the CoC and not to them. However, it is seen that the said agenda of proposal to be made under Section 12A was not considered by the CoC and that they proceeded to vote for the Resolution Plan - it is seen that the proposal as projected by the Learned Senior Counsel for the promoters to be made under Section 12A, seems to be only an eye wash and a dilatory tactics to delay the process of CIRP in relation to the Corporate Debtor and that the fact that the proposal has been mooted only during the eleventh hour is to stall the Resolution Plan as moved by the Resolution Applicant - the allegations of the promoters that their Section 12A Application was not considered by the RP and the CoC do not hold any merits and stands overruled.
Procedural Irregularities - HELD THAT:- It is significant to note here that, a statutory provision regulating a matter of practice or procedure will generally be read as directory and not mandatory. Thus, even though the objectors to the Resolution Plan have alleged many procedural irregularities in relation to the conduct of the proceedings in relation to the CoC; however those objectors have miserably failed to establish as to what prejudice has been caused to them in respect of the same. Further, a person who has been inducted as a member of the CoC in its 6th meeting cannot be allowed to question the actions taken by the CoC in the past meetings - the objections as raised by the objectors in relation to the procedural irregularities in relation to the conduct of the Corporate Insolvency Resolution Process, are not so grave in order to defeat the Resolution Plan as filed by the Resolution Professional - Application dismissed.
Related Party - HELD THAT:- This Tribunal is of the considered view that the Applicants are related party in respect of the Corporate Debtor and that the decision of the IRP/RP in categorizing the Applicant viz. M/s. Dharani Finance Limited as "Related Party" of Corporate Debtor is free from all legal infirmities and does not warrant any interference by this Adjudicating Authority. Accordingly, application stands dismissed.
Discrimination in the Resolution Plan - HELD THAT:- The contentions of the Learned Senior Counsel for the objectors that differential treatment are being made to them since they are related party in respect of the Corporate Debtor do not hold any merit in view of the discussions made supra and also the decisions referred in support of the same. Hence the objections raised by the objectors in relation to the said issues are overruled.
Pending Avoidance Application - HELD THAT:- In the present case, a provision is made in the Resolution Plan as to the fate of the avoidance Application pending in relation to the Corporate Debtor and hence the objections raised by the objectors in this regard are required to be eschewed.
Objections by Prospective Resolution Applicant - HELD THAT:- It is evident that M/s. Apex Laboratories Private Limited, is not even an unsuccessful Resolution Applicant but only an intended prospective resolution applicant, who has failed to submit the Resolution Plan within the timelines fixed by the CoC and M/s. Apex Laboratories Private Limited has no vested right that his resolution plan ought to have been considered by the CoC and no challenge can be preferred thereof before this Adjudicating Authority. Hence, in view of the discussions made supra, the objections raised by the Applicant are overruled and as a consequence, application stands dismissed.
Approval of Resolution Plan - HELD THAT:- From the catena of judgments rendered by the Supreme Court on the scope of approval of the Resolution Plan, it is amply made clear that only limited judicial review is available for the Adjudicating Authority under Section 30(2) and Section 31 of IBC, 2016 and this Adjudicating Authority cannot venture into the commercial aspects of the decisions taken by the Committee of Creditors.
The Resolution Plan is hereby approved and is binding on the Corporate Debtor and other stakeholders involved so that revival of the Debtor Company shall come into force with immediate effect and the "Moratorium" imposed under section 14 of IBC, 2016 shall not have any effect henceforth - Application allowed.
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2021 (7) TMI 1309
Wilful Defaulter - Default in meeting payment/repayment obligations to the Bank, even though they had the capacity - diversion of funds - petitioners have siphoned off funds without using the same for the purpose of which funds were availed - HELD THAT:- A Writ Court cannot go into weigh the sufficiency of reasons given by an administrative or quasi judicial authority. What is seen, is whether there are some reasons, however small, in support of the findings. This is so as it is only a bank and the lender, given their special relations that can assess whether any default on the part of a borrower is wilful or not. A writ Court does not possess such expertise.
The writ petitioners have not been able to demonstrate as to how they have been prejudiced by any of the alleged acts or omissions on the part of the respondent. Assuming for the sake of argument that there is some infraction of procedure on the part of the bank (although the Court does not find any) it is now well settled that every infraction of the principle of natural justice would not ipso facto vitiate proceedings. The petitioner must be able to demonstrate clearly the prejudice suffered by the reason of such infraction. Hence even if one accepts the submission of Mr. Saha that there has been some minor infractions of natural justice or procedure, no prejudice appears to have been caused to the petitioners, by such infraction - Although not pressed in course of arguments it has been pleaded in the writ petition that the bank has instituted proceedings under Section 7 of the IBC, 2016. It is submitted that declaring the writ petitioners as Wilful Defaulters would deprive the petitioners of Rights under Section 32 A of the IBC. It is argued that the impugned orders under Master Circular, 2015 would entail penal consequence on the petitioners and are in derogation of the proceedings under and the provisions of the IBC, 2016.
The petitioners even otherwise are not entitled to benefit of Section 32A, since no resolution plan has been sanctioned as yet by the NCLT and even if a resolution plan was approved, the petitioners cannot avail the benefits of Section 32A for being promoters and consequently being persons in default under Section 32 A read with Section 2(60) of the Companies Act, 2013.
Clause 4.3 of the Master Circular states is that there is scope even under the exiting legislations to initiate criminal action against wilful defaulters depending upon the facts and circumstances of the case under the provisions of Sections 403 and 415 of the Penal Code, 1860 and the banks and financial institutions are strictly advised to seriously and promptly consider initiating criminal action based on the facts and circumstances of each case under the provisions of IPC. Thus, the Master Circular by itself does not have penal consequences, whereas Sections 403 and 415 IPC have penal consequences.
The writ petition must fail and is hereby dismissed.
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2021 (7) TMI 1295
Seeking a direction to admit the claim as a financial debt and not as an operational debt - Section 60(5) of the I&B Code, 2016 - HELD THAT:- There is no need to delve upon the rival submissions made in the instant IA.
Application dismissed.
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2021 (7) TMI 1290
Validity of resolution passed in EOGM - petitioner was removed as Director, by the said resolution - HELD THAT:- The removal of directorship of the Petitioner is inconsistent with the restriction provided under the Articles of Association. Therefore, the Petitioner has made prima facie case for grant of interim stay of resolution passed in EOGM dated 31.05.2021.
It is observed that Respondent No.2 has acted ultra vires of the powers conferred under Articles of Association. Therefore, this Bench is of the considered view that the implementation of the Resolutions passed in the board meetings on 12.03.2021, 31.03.2021, 06.05.2021 & 31.05.2021 have also been consequently stayed pending final disposal of the Company Petition - List this matter on 21.10.2021.
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2021 (7) TMI 1262
Sanction of Scheme of Amalgamation - Section 230 - 232 and other applicable provisions of the Companies Act, 2013 - HELD THAT:- The Petitioners have made the instant Petition before this Tribunal, among other things, seeking final sanction to the proposed Scheme of Amalgamation - The date of hearing of the Petition filed jointly by the Petitioners for sanctioning of the Scheme is fixed on 13.09.2021.
Notice of hearing of the Petition in form NCLT 3A shall be advertised once in English newspaper "Financial Express" and in Bengali newspaper "Aajkal" not less than 10 (Ten) clear days before the aforesaid date fixed for hearing.
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2021 (7) TMI 1209
Attachment of premises - Priority of charge/mortgage over the premises - priority over the dues of the Income Tax department or not - commencement of proceedings under the SARFAESI/Securitisation Act - Whether the secured debt assigned in favour of Petitioner has a priority over Government dues/tax dues? - HELD THAT:- The issue decided in the case of THE STOCK EXCHANGE, BOMBAY VERSUS VS. KANDALGAONKAR [2014 (10) TMI 368 - SUPREME COURT] while considering the question whether the lien exercised under Rule 43 of the Stock Exchange can be said to be a superior right to the Income Tax dues, which may become payable by virtue of the Stock Exchange being a secured creditor, has held that the Income Tax Act does not provide for any paramountcy of dues by way of Income Tax - Supreme Court while holding thus, referred to its own decision in the case of DENA BANK VERSUS BHIKHABHAI PRABHUDAS PAREKH AND CO. AND OTHERS [2000 (4) TMI 36 - SUPREME COURT] where it was held that Government dues have priority only over unsecured debts.
Thus, there is no provision in the Income Tax Act which provides for any paramountcy of the dues of the Income Tax department over secured debt.
The Petitioner’s charge/mortgage over the said premises has priority over the dues of the Income Tax department and the said attachment dated 17th January 2013 by Respondent No.1 cannot come in the way of Petitioner’s rights as secured creditor - Respondent No. 1 is directed to, within a period of two weeks from the date of this order, (i) raise the said attachment levied pursuant to the order of attachment dated 17th January 2013 on the said premises viz. office premises No. 1004, 10th Floor, Prasad Chambers, Opera House, Mumbai-400 004 and (ii) to grant and issue No Objection Certificate permitting the Petitioner to sell the said premises.
Petition allowed.
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2021 (7) TMI 1177
Seeking to restore the name of the Company in the Register maintained by the Respondent/RoC - Section 252 of the Companies Act, 2013 - HELD THAT:- Upon perusing the documents, it is seen that the Company has not placed on record any document to show that they have been active and carrying on its business operations immediately two years preceding the date of strike off. However, a perusal of other communications which are placed along with the written submissions discloses the fact that the Company is having future prospects of running the same for the purpose of which it was incorporated.
It is significant to point out here that while considering an Application under Section 252(3) of the Companies Act, 2013, this Tribunal cannot focus only on the past activities, however, is also required to look into the future prospects of the Company and an upward movement in the business cycle of that industry which would result in the generation of revenue - It is also seen from the records produced before this Tribunal that the Company is proposing to construct a manufacturing unit and has also produced a blue print in relation to the same, which also fortifies the 'just' ground being a factor to be considered by this Tribunal in the process of deciding an Application/Appeal under Section 252(3) of the Companies Act, 2013.
The Registrar of Companies, Chennai is ordered to restore the original status of the Applicant Company viz. M/s. Ferco Shutters & Seating India Private Limited as if the name of the Company has not been struck off from the Register of Companies with resultant and consequential actions like changing the status of Company from "strike off" to "Active" - Application allowed.
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2021 (7) TMI 1176
Seeking to restore the name of the Company in the Register maintained by the Respondent/RoC - Section 252 of the Companies Act, 2013 - HELD THAT:- Taking into consideration the provisions of Section 252 (3) of the Companies Act, 2013 which vests this Tribunal with a discretion where the Company whose name has been struck off and such Company is able to demonstrate that there is a running business as on the date when the name was struck off and also keeping in consideration that it is just to do so can restore the name of the Company in the register and in the interest of all the stakeholders including members of the Company, its employees as well as the revenue and the Applicant itself who seeks restoration of the name of the Company in the register being maintained by RoC.
The Registrar of Companies, Chennai is ordered to restore the original status of the Applicant Company viz. M/s. Shifa Housing Private Limited as if the name of the Company has not been struck off from the Register of Companies with resultant and consequential actions like changing the status of Company from "strike off" to "Active" - Application allowed.
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2021 (7) TMI 1117
Seeking restoration of name of the Company in the Register maintained by the Respondent/RoC - Section 252 of the Companies Act, 2013 - HELD THAT:- The Company has not placed on record any document to show that they have been active and carrying on its business operations immediately two years preceding the date of strike off. However, a perusal of other communications exchanged between the Government of Tamil Nadu and Applicant Company and also from the Memorandum of Understanding, it is seen that the Company is having future prospects of running the same for the purpose of which it was incorporated.
Taking into consideration the provisions of Section 252 of the Companies Act, 2013 and more particularly the 'just' ground as envisaged under sub - section (3) of Section 252 of the Companies Act, the restoration of the name of the Applicant Company in the register maintained by the Respondent, is ordered, subject to the directions imposed.
Application allowed.
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2021 (7) TMI 1111
Winding up petition - proceedings transferred to NCLT - Section 434(1)(c) of The Companies Act, 2013 - HELD THAT:- The exercise of extraordinary jurisdiction under Article 226 of the Constitution of India, in such cases of complex facts, financial statements & claims will be inappropriate and such question of facts may not be properly adjudicated at all under Article 226 of the Constitution of India. Such fact finding exercise necessarily should be undertaken by the appropriate fact finding Tribunal and Authorities.
The winding up proceedings pending before the learned Company Judge are not at the advance stage of the winding up of the Company and the said proceedings are pending for long period since 1986 without much of the progress and that may be apparently because the Assets of the Company were sold in favour of M/s. Shree Industries Limited (SIL), and thereafter,there nothing much was left with the Company in Liquidation -M/s. Ganpati Pulp to square up the dues of the other Secured and Unsecured Creditors and also the workmen.
It is requested all the learned Counsels appearing the present matter today before us or who have already put in their appearance in this matter to file a brief two page Note either agreeing to the aforesaid proposed order of the Court or if they wish to make a submission against the aforesaid proposed order, they may do so with reason and case law, if any.
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2021 (7) TMI 1110
Settlement of the dues of Respondent No.9 - seeking to fix meeting with Time, Date and Venue fixed may be fixed by the Court to take further steps for settlement of dues - HELD THAT:- Let the meeting of these parties and other related parties as indicated in the Order dated 17.2.2021 passed by this Court take place at Bombay in the office of Respondent No.9 M/s. ASREC (India) Ltd., on 24th and 25th June 2021 at 11:00 a.m. It is expected that the concerned parties involved in this dispute particularly, Respondent No.5 and Respondent No.9 shall make it a point to convene and hold such meeting and proceed further in appropriate manner in the letter and spirit of the earlier directions of this Court and undertake the process of settlement of the dues as indicated in the said Order dated 17.2.2021. Let the Report of such meeting be filed by both these parties and be placed before this Court on the next date of hearing.
List the matter again on 1.7.2021.
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2021 (7) TMI 1067
Validity of one time settlement - hurried settlement - auction price converted to term loan - various aspects ignored in winding up proceedings - petitioners herein are guarantors of the default unit M/s Ganpati Pulp and Paper Mills Ltd. - HELD THAT:- The hurried One Time Settlement of GSFC with SIL in favour of which even the major part of the auction price was converted into a term loan by GSFC and in the repayment of which, SIL defaulted, still instead of again taking over the assets and re-auctioning them, GSFC chose, for the reasons best known to it to enter into One Time Settlement with SIL at a mere ₹ 60 lakhs and that is a matter to be looked into by the NCLT. The said SIL is also said to have stopped its production activities and the assets of GPPML sold to it under Section 29 way back in the year 1990 are still in disuse or are not being used for any productive activity and that is not only a wastage of assets for the creditors and other stakeholders, but also a national waste.
All these aspects cannot obviously be looked into by this Court in writ jurisdiction or even a winding-up Court while seized of the winding-up proceedings, but a Special Body like NCLT can definitely look into all the aspects of the matter as it is vested with the powers of CIRP (Corporate Insolvency Resolution Process) as enacted in the provisions of IBC, 2016, as defined in Chapter-2, Sections 6 to 32A of the IBC, 2016.
In the inherent & plenary jurisdiction under Article 226 of the Constitution of India read with Clause 15 of the Letters Patent vested in us, while deciding the present Letters Patent Appeal and Special Civil Application No.11116 of 2008, we are therefore of the considered opinion that entire litigation of these two corporate bodies viz. GPPML and SIL deserves to be decided by the NCLT by examining the claims, counter-claims, defences and other relevant aspects of all the parties involved in the matter afresh in respect of both the corporate entities in question GPPML & SIL without being influenced by any observations made by any Forum below or OTS Settlement by GSFC & SIL nor such transfer of proceedings depends upon filing of the application by any party - the development of new law in the form of IBC is an opportunity for all these stakeholders to get their claims adjudicated and corporate insolvency resolved in a best appropriate manner on the Forum of NCLT which is the most competent body under the law as available now for these issues.
The learned Company Judge, who is seized of the winding-up proceedings of Company Petition No.139 of 1985 are requested to consider all the relevant aspects of the matter and then take appropriate decision in the matter to transfer the winding-up proceedings to NCLT, Ahmedabad Bench - petition disposed off.
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2021 (7) TMI 1046
Recall of order - applicant was not impleaded as a party to the writ petition, for which the points raised in the recall application could not be properly represented before the court - re-activation of the Directors Identification Number (DIN) - HELD THAT:- In the present case, the challenge in the writ petition was that the DIN of the writ petitioner could not be deactivated since the writ petitioner had complied with the requirements to be complied with by the directors by filing annual reports and financial statements of the concerned financial years. However, it is specifically admitted in paragraph no. 18 of the writ petition that the petitioner is taking appropriate steps in respect of the marking of the respondent no. 4, that is, the Tirupathi Properties & Investment Private Limited as having management dispute. Thus, the marking of the company as having management dispute was not the subject-matter of the writ petition but that of an appropriate challenge before a different forum.
A perusal of the Master Circular dated February 10, 2012 makes it clear that Clause 3 thereof is independent of Clause 2, the latter merely contemplating the requirement of the company to mandatorily file the attachment relating to cause of cessation along with Form 32 of the ROC concerned, irrespective of the ground of cessation - Clause 3 of the Circular still remains in force and restrains the ROC from approving/registering/recording the documents filed by the company and the directors and from making those available in the registry for public viewing if there is an existing management dispute.
In fact, since such marking of the company-in-question as having management dispute still continues, independent of the re-activation of the writ petitioner’s DIN, the portion of the order under recall, whereby the order of the ROC dated June 24, 2016 was set aside, was beyond the scope of the writ petition and the dispute involved therein - although the portion of the order under recall, by which the deactivation of the writ petitioner’s DIN was set aside, was justified since there was due compliance of the liabilities of the writ petitioner as director of the company-in-question, the latter portion of the order under recall, setting aside the operation of the order dated June 24, 2016 of the ROC, was in contravention of the Circular dated February 10, 2012 and, thus, bad in law.
Since the review applicant was not impleaded as a party to the writ petition, there was no opportunity for the said applicant to point out the aforesaid flaw in the order under recall and/or any scope of arguing the question as raised in the review application at the relevant juncture, the portion of the order under recall setting aside the order dated June 24, 2016 is required to be recalled/set aside - deactivation of the DIN of Garima Rungta, the writ petitioner, is set aside and such DIN is re-activated.
Application allowed.
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2021 (7) TMI 1017
Seeking approval of Tribunal for sanction of scheme of Amalgamation - section 230-232 of the Companies Act, 2013, read with Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - HELD THAT:- On going through the approvals accorded by the members and creditors of the Petitioner Companies to the Scheme and the affidavits filed by the Regional Director, Eastern Region, Ministry of Corporate Affairs, the rejoinders filed by the Petitioner Companies to the observation of the Regional Director and the rejoinder thereto, there appears to be no impediment in sanctioning the present Scheme. The Petitioners shall abide by the undertakings given in their affidavits.
Since all the requisite statutory compliances have been fulfilled, the scheme is approved - application allowed.
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2021 (7) TMI 1015
Sanction of the Composite Scheme of Arrangement - Section 230(6) read with Section 232(3) of the Companies Act, 2013 - HELD THAT:- Various directions regarding holding and convening of various meetings issued - directions regarding issuance of various notices also issued.
The Petitioner(s) shall supply legible print out of the scheme and schedule of assets in acceptable form to the registry and the registry will append such printout, upon verification to the certified copy of the order - petition disposed off.
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