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• 2022 (12) TMI 227
  
  Winding up of company - Default in payment of value of the goods - statutory notices not responded - matter later on settled between the petition creditor and the appellant company - HELD THAT:- The company Court ordered winding up of the company only on the ground that the Company Petition was not contested and that the liability with the petitioner was proved. There was no other material to hold that the company was in doldrums and there was no other option but to windup. As required by Section 434 (1) (c) of the Act, there was no occasion to learned single Judge to take into account the contingent and prospective liabilities of the company. Since the matter is settled between the petition creditor and the appellant company and that settlement has been placed on record and no one has raised objection against recalling the windup order a....... + More

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• 2022 (11) TMI 1158
  
  Seeking suspension of Look Out Circular (LOC), if any, issued against the petitioner - Permission to travel Abu Dhabi, Bahrain, Riyadh and London for his consultancy work related to his business - allegation of siphoning of huge amount - investigation under the Black Money (Undisclosed Foreign income and assets) and Imposition of Tax Act, 2015 at initial stage - HELD THAT:- The issuance of an LOC is in nature of an administrative action and the scope of judicial review is limited. While reviewing administrative action it was held Courts do not substitute the wisdom of the authorities as if it is sitting in appeal. The Hon’ble Supreme Court in the case of RAM JETHMALANI VERSUS UNION OF INDIA [2011 (7) TMI 844 - SUPREME COURT] had taken judicial notice of the fact thousands of crores of Indian rupees are stashed away abroad in foreign....... + More

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• 2022 (11) TMI 1075
  
  Transfer of shares before liquidation - company in liquidation was ordered to be wound up - Seeking approval to the transfer of 6600 shares of Svadeshi Mills Company Ltd (in liquidation), initially in the name of the applicant No.1 and, thereafter, further, out of those shares, 2800 shares in the joint names of applicant Nos. 2 and 3 and another lot of 2800 shares in the name of applicant No.4, purportedly under Section 536 (2) of the Companies Act, 1956. HELD THAT:- The parameters for exercise of discretion are well neigh settled. The court has absolute discretion to validate a transaction. Exercise of discretion is controlled by the principles which govern exercise of a judicious discretion in other jurisdictions. The Court must be cognizant of all the attendant circumstances and if from all the surrounding circumstances, the Court come....... + More

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• 2022 (11) TMI 934
  
  Initiation of multiple proceedings by ROC under section 206(4) of The Companies Act, 2013, in respect of the same alleged contraventions - submission of report on the inspection under section 208 of the Act - HELD THAT:- A careful perusal of the provisions relating to inspection, inquiry and investigation of companies under sections 206-210 of the Companies Act, 2013 indicates that the sequential steps required to be taken by the ROC must be followed before the ROC submits the report in writing to the Central Government for further investigation into the affairs of the company if necessary. The stage of filing a report comes only after inspection of books of accounts or conducting inquiry under sections 206 and 207 of the Act. Section 210 is the culmination of this batch of provisions relating to inspection, inquiry and investigation into....... + More

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• 2022 (11) TMI 350
  
  Seeking grant of bail - SFIO - offences under Companies Act, 2013 and offences under the IPC. - extension of remand of judicial custody - applicants submits that the custody of the applicants was illegal between 31.05.2022 to 06.08.2022, inasmuch as, there was no judicial order of remand but a mere endorsement on the warrant was made which does not fulfill the legal requirement of a valid remand order. Whether on 31.05.2022 a speaking order was required to be passed and further the remand period beyond more than 15 days can be accepted to be legal? - HELD THAT:- It is settled principle of law that courts should not place reliance on decisions without discussing how the factual situation of the case they are asked to adjudicate upon fits the facts situation of the decision on which reliance is placed. Circumstantial flexibility, one additi....... + More

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• 2022 (11) TMI 168
  
  Scope of writ jurisdiction - statutory violation - rejection of the nomination of the writ petitioners for the directorship of the appellant under Section 160 of the Companies Act, 2013 by the appellant bank - HELD THAT:- Section 1(4)(a) of the Companies Act, 2013 makes it clear that it applies to companies incorporated under the Act 2013 or under any previous company law. Clause (c) of Section 1(4) makes it clear that the provisions apply to the banking companies, except in so far as the said provisions are inconsistent with the provisions of the Banking Regulation Act, 1949. It is true, from the provision of Section 160 of Act 2013, that definite parameters are prescribed concerning how an application for Directorship is to be submitted and considered. Section 178 of Act 2013 deals with the Nomination and Remuneration Committee and Stak....... + More

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• 2022 (11) TMI 167
  
  Dissolution of the company - Section 481 of the Companies Act, 1956 - HELD THAT:- On perusal of the record of this report and in the facts of this case and considering the ratio laid down by the Hon'ble Apex Court in the case of MEGHAL HOMES (P.) LTD. VERSUS SHREE NIWAS GIRNI KK. SAMITI [2007 (8) TMI 447 - SUPREME COURT], the report deserves to be accepted. Supreme Court of India in case of MEGHAL HOMES (P.) LTD. VERSUS SHREE NIWAS GIRNI KK. SAMITI has held that When the affairs of the Company had been completely wound up or the courts find that the official Liquidator cannot proceed with the winding up of the Company for want of funds or for any other reason, the court can make an order dissolving the Company from the date of that order. This puts an end to the winding-up process. The Company, named, M/s. ARM Polymers Limited (In Liq....... + More

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• 2022 (10) TMI 1083
  
  Possession of suit property - recovery of arrears of rent - family company - real beneficiary / lifting of corporate veil - relationship of lessor and lessee between the parties or not - Order XII R-6 read with Order XIIIA of the Code of Civil Procedure, 1908 - HELD THAT:- While examining an application under Order XII Rule 6 of the CPC, the court has to see whether clear and categorical admissions has been made on behalf of the defendant on the basis of which a decree can be passed in favour of the plaintiff. As per the Lease Agreement, a sum of Rs.2,50,000/- per month was payable as rent. As per the defendant firm, from the time of execution of the aforesaid lease on 1st April, 2007, no rent was ever paid by the defendant firm to the plaintiff company. A perusal of the relevant extracts of the profit and loss account and balance sheets ....... + More

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• 2022 (10) TMI 963
  
  Fraud - minority shareholders or not - applicability of Section 439 of the Companies Act - submission is that once an offence has been designated to be cognizable under Sub-section 6 of Section 212 of the Act, the provision of Section 439 of the Act that deals with non-cognizable offences would not be applicable and the procedure prescribed under Section 212 of the Act has to be strictly followed - initiation of proceedings under Section 447 of the Companies Act, 2013. Whether a shareholder, minority or otherwise, can initiate proceedings before the Magistrate by himself or herself for an alleged offence under Section 447 of the Companies Act, 2013? - HELD THAT:- Section 439 of the Companies Act, which has been reproduced herein above, makes all the offences under the Companies Act non-cognizable and Sub-Section (3) of Section 439 provide....... + More

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• 2022 (10) TMI 935
  
  Jurisdiction of Court to entertain the writ petition - Jurisdiction of ROC to deal with complaint - effect of the pending Commercial Suit No.584 of 2017 on the complaint - Non-issuance of duplicate certificate - non-payment of dividend - non-receipt of notice for general meeting - dispute sub-judice before the High Court of Judicature at Bombay - HELD THAT:- In case of Damomal Kausomal Raisinghani vs. Union of India & Ors. [1965 (12) TMI 154 - BOMBAY HIGH COURT], a co-ordinate Bench of this Court held that the place where the consequences of the impugned order fell on the Petitioner would be a place where at least the cause of action in part would arise. The Petitioners have specifically averred that the Petitioner No.1 would be able to trade with the shares in Mumbai and therefore, impugned order of ROC has affected Petitioners&rsquo....... + More

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• 2022 (10) TMI 705
  
  Seeking consideration of preferential claim - Section 530 (1) (a) of the Companies Act, 1956 - HELD THAT:- Having considered the submissions by learned advocates for the parties and the report of the Official Liquidator, the Official Liquidator is directed to consider the claim of Gujarat Commercial Tax (GST) as preferential claim in light of claim verification report submitted by M/s. Naimish Shah & Company, Chartered Accountants. The Official Liquidator is permitted to encash premature FDRs to disburse amount to the secured creditor of the company in liquidation - Application allowed.

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• 2022 (10) TMI 643
  
  Disqualification of Director under section 164(2) of the Companies Act, 2013 - HELD THAT:- From the perusal of the Act of 2013 and Rules of 2014, it appears that Section 152 of the Act of 2013 deals in respect of Appointment of Director whereas Section 153 is in respect of Application for allotment of DIN and Section 154 is in respect of Allotment of DIN. It is pertinent to mention here that as per Section 152(3), allotment of DIN under Section 154 ( or any other number as may be prescribed under Section 153) is a prerequisite for appointment as director of a company. From perusal of said rule, it appears that cancellation or deactivation of DIN can be done at the instance of any person while moving an application along with fee as specified in the Rules of 2014 and that too after affording of opportunity of hearing (if cancellation or de....... + More

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• 2022 (10) TMI 210
  
  Validity of Look Out Circulars [LOC] issued and extended by respondent No.2 - territorial jurisdiction to entertain this Writ Petition - Indian entities of the Bank of Baroda and the State Bank of India can make a request for issuance of LOC to respondent No.2 in respect of dues owed to their sister entities incorporated in the UAE or not - Whether this Court has territorial jurisdiction to entertain this Writ Petition? - HELD THAT:- It is the case of the respondents that money decree granted by by the Dubai court (Annexure R-9) against petitioners and M/s AIF, UAE will be enforced in India invoking Sec.44A of the CPC and the notification dt.17.1.2020 issued by the Govt. of India declaring the UAE to be a reciprocating country for purposes of Sec.44A CPC. So the decree holders intend to proceed against the properties of the petitioners lo....... + More

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• 2022 (10) TMI 209
  
  Oppression and Mismanagement - Enforceability and validity of family settlement agreement entered upon - existence of concluded agreement capable for specific performance - powers of the NCLT in a Petition for Oppression and Mismanagement - Section 242 of Companies Act - HELD THAT:- Under Section 424, the NCLT has all the powers of a civil court under the CPC, while not being strictly bound by it. Read together, this meant that the MOD could be recorded as a compromise by - and only by - the NCLT; assuming that both sides saw it as capable of being recorded as a compromise. If the Sanghvis repudiated it, by word or deed, then what remained was the undoubted power of the NCLT in the O&M proceeding, one that the civil court did not have. Merely demanding ‘specific performance’ did not give the MOD a colour or a character it ....... + More

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• 2022 (9) TMI 1351
  
  Suit for recovery alongwith interest - Order XXXVII of Code of Civil Procedure, 1908 - whether the averments in the pleadings constitute an acknowledgment of debt to the extent of the amount, the defendant agreed to refund? - HELD THAT:- In the light of the exposition of the legal connotation of the terms “debt” and “acknowledgment” the pleadings extracted it satisfies the requirement of both “debt” and “acknowledgment” to the extent of the amount, which the defendant agreed to refund. The submission on behalf of the defendant that, in the absence of a written contract to refund the amount, the tenability of the suit itself is suspect, does not merit acceptance unreservedly, if the afore-extracted pleadings are construed in the light of the aforesaid enunciation of law. In my view, the ackno....... + More

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• 2022 (9) TMI 1350
  
  Seeking to transfer of the Company Petition to the National Company Law Tribunal (NCLT) for being heard and decided in accordance with the provisions contained in Insolvency and Bankruptcy Code, 2016 (IBC) - alleged malafide conduct of the ex-directors of Futura - Section 434 of the Companies Act, 2013 - HELD THAT:- Commitments and undertakings were made on umpteen occasions to be observed in breach. Simply, it cannot be urged that Futura and its ex-directors had no adequate opportunity to make amends. Thus, the touchstone, on which irreversibility is to be judged, is also indicated by observing that so long as no actual sale of the immovable or movable assets of the company in liquidation takes place, nothing irretrievable can be said to have been done which would preclude the Company Court from exercising discretion to transfer the proc....... + More

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• 2022 (9) TMI 1298
  
  Validity of Arbitral Award - seeking winding up of company (Devas) - it was alleged that Devas was formed for a fraudulent and unlawful purpose and its affairs had been conducted in a fraudulent manner - Section 271(c) read with Section 272(1)(e) of the Companies Act, 2013 - HELD THAT:- An independent but concurrent opinion was authored by the other member of the NCLAT, Mr. V.P. Singh, Member (T). Mr. V.P. Singh in his judgment inter alia held Devas could not have delivered Devas Services in India due to the lack of policy framework and licensing regime for a new service like Devas Services - Devas conceded before the NCLAT that the design of DMR and CID was at a conceptual level and were to be developed at a future date. It was also not disputed that DMR and CID were portions of the Devas’ Device and not the Devas’ Device its....... + More

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• 2022 (9) TMI 643
  
  Legislative power of state government - Matter covered within the scope of Companies Act - Beneficial provisions of the Maharashtra Protection of Interest of Depositors (In Financial Establishments) Act 1999 (MPID Act) - whether the provisions are entirely denuded and reduced to meaninglessness when the financial establishment in question is a corporate entity in liquidation? - HELD THAT:- MPID Act does not contemplate a situation of a company in liquidation at all. There are two reasons for this. The first is that the MPID Act deals with a financial establishment as defined. It is not limited to a company. In that scenario, i.e. where the financial establishment is not a company, no question of winding up arise. Second, it appears from a careful reading Section 4 that the MPID Act is in fact predicated on the financial establishment (whe....... + More

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• 2022 (9) TMI 570
  
  Seeking grant of Anticipatory Bail - signature of some of the shareholders is forged is incorrect - forged and fabricated Power of Attorney - offences punishable under Section 120-B read with Section 420 of IPC with Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act - HELD THAT:- This court is of the opinion that non-availability of Original Power of Attorney alone would not call for any custodial interrogation. It can be seen that applicant Mukesh Bhanwarlal Bhandari, who is a senior citizen has appeared before the Investigating Officer on 09.06.2022, 26.06.2022, 16.08.2022, 23.08.2022. The applicant Siddharth Mukesh Bhandari also appeared on 09.06.2022, 22.06.2022, 14.08.2022, 16.08.2022 and 23.08.2022 before the Investigating Officer. The offences alleged against the applicants are under Sections 420/468/471/1....... + More

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• 2022 (9) TMI 281
  
  Seeking directions to immediately release the pending payments - seeking directions to release payments against all future invoices which are raised in accordance with the provisions of the PPA without delay and in a timely manner - principles of natural justice - HELD THAT:- There is no dispute to the proposition that having regard to the jurisdiction exercised by the High Court under Article 226 of the Constitution of India, availability of alternative remedy is not really a bar to exercise such jurisdiction. Nonetheless as the jurisprudence has evolved over the years, Constitutional Courts have imposed upon themselves self-restraint in not exercising such jurisdiction barring in certain exceptional circumstances, such as, violation of principles of natural justice, when the vires of a Statute is challenged, etc. However, the same is no....... + More

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