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Companies Law - High Court - Case Laws
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- 2019 (11) TMI 319
Disqualification of Directors - defaulting directors - Use of DSC and DIN no by the disqualified director - Interpretation of statute - provisions of Section 164(2) and Section 167(1)(a) of the Companies Act, 2013 - default on the part of concerned companies in filing the annual returns and financial statements for the financial years 2014-2016. Whether the provisions of Section 164(2)(a) are retrospective? - HELD THAT:- A plain reading of Clause (a) of Section 167 (1) of the Act indicates that a Director would demit office if he incurs the disqualification under Section 164 of the Act. The proviso to Clause (a) of Section 167(1) of the Act was introduced with effect from 07.05.2018, by virtue of the Companies (Amendment) Act, 2018 Indisputably, the plain language of Section 164(2) read with Section 167(1)(a) of the Act leads to an absurd....... + More
- 2019 (11) TMI 254
Grant of anticipatory bail - petitioner has signed forged letter of credits and other documents for availing credit facility from the Bank on behalf of A-1 Company. - the petitioner has prayed for anticipatory bail on the ground that petitioner is 65 years old - offences alleged in the said complaint against the petitioner are under Section 128, 129, 447, 448 of the Companies Act, 2013, Section 209, 211 read with 628 of the Companies Act, 1956, and Section 467, 468, 471 read with Section 120-B IPC - HELD THAT:- The allegations levelled against the petitioner are prima facie serious in nature. The allegations are that petitioner was one of the signatories of the financials of ‘A-1’ company and Director in category ‘C’ Company. The details of the same have been described in the summoning order dated 16.08.2019 of the....... + More
- 2019 (10) TMI 895
Winding up of the respondent Company - appointment of Official Liquidator - Sections 541 and 542 of the Companies Act, 1956 - HELD THAT:- The applicant company has been unable to explain the source of funds for acquisition of the land. The applicant has not been able to show bank statements, the statement of accounts, Bank Instruments etc. Despite several opportunities the records which would normally be in the power and possession of the applicants have been deliberately hidden from the court. This clearly raises a strong suspicion about the acts and conduct of the applicants. In the present case, despite directions of this court dated 5.9.2008 and subsequently, the applicants have failed to produce relevant documents to show the details. Clearly, this court would draw an adverse inference against the applicants for having withheld from ....... + More
- 2019 (10) TMI 545
Initiation of action against the petitioners for the alleged offences punishable under section 97(1) and read with Section 97(3) of Companies Act, 1956 - Petitioners have assailed the said action on the ground that proceedings initiated against them are barred by limitation - HELD THAT:- In terms of Section 97, the offence gets completed on expiry of 30 days from the date of passing the resolution or from the date of subsequent resolution. Since action has been initiated against the petitioner beyond the period of 30 days, prosecution launched against the petitioner is barred by limitation and therefore cannot be sustained. Proceedings initiated against the petitioners are quashed - Petition allowed.
- 2019 (10) TMI 378
Winding up petition - appointment of Official Liquidator as the provisional Liquidator - Sections 433(e) and 433(f) of the Companies Act, 1956 - HELD THAT:- The proceedings under IBC are independent and have an object different from the one envisaged under the scheme of liquidation provided in the Company Law. The former aims resolution by way of revival in a manner that benefits all stakeholders, the creditors as well as the company. Thus, the scope of the proceedings before the NCLT is wider - with the object of preserving the company and its business/ commercial activities. When transfer of winding up petition can aid in achieving the aforementioned objective, it ought to be allowed in the interest of justice. Merely because the learned Company Judge had ordered the winding up of the appellant company on 03.08.2004, it does not follow ....... + More
- 2019 (10) TMI 377
Resolution passed by the Board of Directors consisting of director not having DIN - Attachment of decretal amount - release of the amount deposited in the treasury to the respondent/decree-holder - Section 266 A of the Companies Act, 2006 - HELD THAT:- A perusal of Section 266 A of the Companies Act, 2006 reveals that every person intending to be appointed as a Director of a company or a Director of Company appointed before commencement of the Companies Amendment Act, 2006 was required to make an application for allotment of Director Identification Number to the Central Government and that every director appointed before the commencement of the Companies Amendment Act, 2006 was required to make the application within 60 days of the commencement of the said Act to the Central Government - Further Rule 2(1)(d) of the aforementioned Rules st....... + More
- 2019 (10) TMI 300
Transfer of the present winding up petitions to National Company Law Tribunal - whether in exercise of powers under the proviso to Section 434 of the Companies Act, 2013, this court should transfer the present proceedings to NCLT? HELD THAT:- It is manifest that two functionaries, namely, OL under the Companies Act, 1956 and Liquidator under IBC cannot concurrently carry out their functions. Such a proposition would create a needless confusion. Once a liquidator is appointed by the company court in saved matters, the process of liquidation commences. Ordinarily, the liquidator takes time and efforts to consolidate the assets of the respondent company, to evaluate the same and put them for auction. He seeks to take other steps to dissolve the company. Once this process has started, no purpose is served by handing over the same to another l....... + More
- 2019 (9) TMI 1161
Constitutional validity of Corporate social responsibility (CSR) - Vires of Section 135 of the Companies Act, 2013 - Rules 2 and 3(2) of the Companies (Corporate Social Responsibility Policy) Rules, 2013 - whether CSR is analogous to the imposition of tax - various type of definitions of the term ‘profit’ - validity of circular dated 18.6.18 and its effect as retrospective or prospective - petitioner had also submitted that other Partnership Firms, Sole Proprietorship, Trusts etc. are not brought under the purview of Section 135 of the Companies Act and only the companies are covered, hence the said Section 135 is discriminatory in nature. HELD THAT:- It appears from the provisions of the Companies Act, especially Section 135 thereof and also looking to Entries No.43 and 44 of List-I to the 7th Schedule to the Constitution of ....... + More
- 2019 (9) TMI 1008
Maintainability of suit - alternative remedy - Prevention of Oppression and Mismanagement - Jurisdiction of NCLT - right of dependent, individually or collectively to sell, transfer, dispose of or create third party interest in the undertaking - HELD THAT:- Section 242(2)(m), being the residuary power and which is equivalent to Section 402(g) of the Companies Act, 1956, is very widely worded and would confer such a power on the NCLT - The NCLT, per Section 242(4), is also empowered to grant interim relief as sought by the plaintiff along with the plaint in this suit also, of restraining the defendants from dealing with the immovable property of the defendant no.1. NCLT and its predecessor Company Law Board (CLB), in such situation as pleaded by the plaintiff, if finds merit in the claim of the plaintiff, have much wider powers than the po....... + More
- 2019 (9) TMI 751
Company under Liquidation process - Withdrawal of amount for making payment to employees - HELD THAT:- Submission made on behalf of the office is to act on precedent of several orders earlier passed coupled with good feeling for approaching festive season. Purely by reason of several orders having been passed earlier, this application is disposed of in terms directed by last order dated 31st August, 2018, in respect of the prayers allowed thereby. Application disposed off.
- 2019 (9) TMI 714
Resale of old properties - HELD THAT:- The office is directed to resell this property on fresh sale notice. The notice be published in one English and one vernacular daily having wide publication in Pune. Date of sale will be 13th December, 2019. It goes without saying, information regarding sales should be uploaded by the office on its website. Offer documents are returned to Mrs. Sikdar. The offerers want return of respective earnest money tender instruments. The office is directed to return them. List on 13th December, 2019 for disposal.
- 2019 (9) TMI 535
Oppression and Mis-management - appellate remedy provided under Section 421 of the Companies Act 2013 - Maintainability of petition u/s 241 of Companies Act - HELD THAT:- In the instant case, the Companies Act, provides for an appeal from the order of the National Company Law Tribunal to the National Company Law Appellate Tribunal. Appeal is both on law and facts. Both can be adjudicated before the Appellate Tribunal. No doubt, the High Court has powers under Article 227 of the Constitution of India to entertain petitions where Courts and Tribunals under the jurisdiction of the High Court have acted in a manner which has resulted in abuse of process of law or where the facts are so gross that if the High Court does not entertain the petition, then it will result in such an injury which cannot be rectified. Under Section 248 (5) of the Com....... + More
- 2019 (9) TMI 333
Proceedings against the auditors of the company - removal from the statutory audit - proceedings after resignation - Constitutional validity of sub-section (5) of Section 140 of the Companies Act, 2013 - prosecution of the Petitioners and initiation of proceedings under section 140(5) of the Act - HELD THAT:- the word “action” in the second proviso to sub-section (5) of section 140 of the Act, would be required to be read down as “prosecution”. The prosecution can be initiated only after final report, equated with a report under the provisions of section 173 of the Code of Criminal Procedure, 1973, is made - This issue, in our prima facie opinion, also requires to be dealt with elaborately. The matter thus warrants a response from Respondent No. 1 and Respondent No. 2. We defer the hearing on the writ petitions - Stand over to 3rd October 2019.
- 2019 (9) TMI 287
Territorial Jurisdiction - transfer of the Company Petition to the Hon’ble National Company Law Tribunal, Bengaluru - proviso inserted to Section 434[1][c] of the Companies Act, 2013 - HELD THAT:- In view of the application filed by the petitioner under Section 434 [1][c] of the Companies Act read with proviso thereof, there is no inhibition for this Court to transfer the pending Company Petition to NCLT to enable the applicant/petitioner to pursue its remedies under the provisions of the Code, accepting the reasons set out for such transfer - It is to achieve the objects of the new Rules, 2016 as regards to provide an opportunity of arrangements and re-construction/rehabilitation and other proceedings relating to the winding up to be adjudicated by the NCLT under the provisions of the Code, this Court deems it appropriate to transfer the pending Company Petition No.125/2014 to the NCLT. Petition transferred - application allowed.
- 2019 (9) TMI 76
Oppression and Mismanagement - Power of CLB to decide the issue of salary - section 397/398/402 and 403 of The Companies Act, 1956 - disbursement of outstanding salary of the intervener for the month of November 2013 - HELD THAT:- The CLB is free to pass orders as long as they are in the interest of proper conduct of the affairs of the Company. Earlier also the CLB had passed the order dated 28.02.2013 by which it had made certain directions regarding the employees of the company including that the employees shall not be suspended or terminated. It is manifest from the said order that the employees would have also to be paid their salaries. The said order was not challenged in any proceedings and to that extent has attained finality. The present impugned order has been passed only in furtherance to the said directions given on 28.02.2013........ + More
- 2019 (8) TMI 1038
Financial Establishment or not - National Spot Exchange Limited (NSEL) - whether the NSEL is a financial establishment within the meaning of Section 2(d) of MPID Act? - HELD THAT:- The NSEL has not accepted any deposit and if it has not accepted any deposit, then it would not fall within the definition of ‘financial establishment’. The NSEL has received money from the buyers at T+2 date and it was immediately paid to the sellers at T+2 date. However, on T+25 date, the parties who were sellers on T+2 date, and who were under obligation to make payment on T+25 date, failed to do so and it is not the NSEL but the sellers who receive the money from the buyers on T+2 date with an underlying obligation to make the payment of T+25 date but failed to do so and therefore, at the most, they could be referred to as ‘financial estab....... + More
- 2019 (8) TMI 917
Maintainability of writ petition - proceedings against an officer of President level and senior most permanent employee of the company, Petronet LNG Limited - ex-parte order- petitioner concluded his arguments on the maintainability and submitted that it is obvious that the words “Any person or Authority”, used in Article 226 of the Constitution of India, are, therefore, not to be confined only to statutory authorities and instrumentalities of the State - HELD THAT:- The respondent company is “Public Limited Company‟ as per section “4-Memorandum-(1)” of Companies Act, 2003. The company was formed as a joint venture company by Government of India in 1998 in pursuance of Cabinet decision on 04.07.1997. Thus, it is an instrumentality of Government because it comes under purview of “other authorities&....... + More
- 2019 (8) TMI 533
Affidavit filed but no objection thereto - proof of debt filed - section 530 of Companies Act, 1956 - HELD THAT:- Hearing is adjourned for the office to inform Court regarding whether there has been verification of claim lodged by SAIL. Statement made in paragraph 9 of its said affidavit-in-opposition, is its contention regarding the claim, thereby omitting reference to whether or not it was verified. List under same heading on 13th August, 2019.
- 2019 (8) TMI 496
Eligibility of wages to dissenting workmen - company under liquidation - Several claims were lodged by the dissenting workmen before the official liquidator for adjudication - Whether the consent terms are binding upon the dissenting workmen? - HELD THAT:- The submission that the dissenting workmen were well aware of the then impending consent terms or they allowed the consent terms to be taken on record, or, for that matter, the consent terms were accepted in the presence of the learned counsels representing the dissenting workmen are of no avail. In the face of the provisions contained in section 529 and 529A of the Companies Act, 1956, the dissenting workmen cannot be deprived of their statutory and legitimate right to participate in the product of their labour and effort, which becomes disbursible, in the wake of winding up, on t....... + More
- 2019 (8) TMI 372
Lifting of corporate veil - Dishonour of cheque - transactions by the directors in personal capacity or not - The averment of the plaintiff/respondent is that that, with a view to evade payment of their liability to her, the defendants/petitioners are selling their factory located in Himachal Pradesh - Deletion of names from the array of parties in the suit - suit for recovery, wherein four parties were arrayed as defendants - HELD THAT:- The order of the Trial Court is entirely unsustainable. The allegations contained in the plaint do not speak of any transaction with the defendant nos. 2 to 4 in their personal capacity. The business dealings, although claimed to be with the “defendants”, the bills and invoices enclosed with the plaint were all issued on the defendant no. 1 company. Similarly, the cheques mentioned in the pla....... + More
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