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Companies Law - High Court - Case Laws
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- 2020 (1) TMI 594
Declaration of consent terms - commencement of winding up proceedings - whether the applicant has pleaded and proved that the consent terms arrived at between the applicant and the respondent in the Comm. Admiralty Suit on 24th October, 2016 after commencement of the winding up proceedings was in the ordinary course of business and was in the best interest of the respondent company in liquidation or not? - HELD THAT:- Under Section 441(2) of the Companies Act, 1956, the winding up of the respondent shall be deemed to have commenced on the date of presentation of the petition for winding up i.e. 28th August, 2014 - It is admitted position that the consent terms between the applicant and the respondent in the said Comm. Admiralty Suit No. 15 of 2016 were filed only on 24th October, 2016. There is no dispute that this Court had already appoi....... + More
- 2020 (1) TMI 280
Winding up petition - compensation paid by the National Highways Authority of India (NHAI) towards acquisition of the lands of the Company - whether the workers' union of the Company could maintain an application under Section 529A of the erstwhile Companies Act, 1956? HELD THAT:- This Court directs as follows:- I) That the Court continues to be in the position of custodia legis of the Company/BJF. II) That ipso facto there is no permanent stay of winding up. III) That as the custodia legis, this Court appoints a three member Committee of Management (for CoM). IV) The CoM will be constituted of the following members: 1) Mr. Mukul Lahiri, Learned Senior Advocate; 2) Mr. Snehatosh Mazumder, Learned Counsel; and 3) Mr. Sondwip Mukherjee, Learned Counsel (and erstwhile Joint Special Officer). V) The CoM will be entitled to appoint an Audi....... + More
- 2020 (1) TMI 200
Stay on encashment of the Bank Guarantee - appealable order or not - HELD THAT:- As the impugned order dated 13th December, 2019 passed by the NCLT is an appealable order under Section 61 of the Code, 2016, we are not entering into the merits of the case. This is neither a case that a Labour Court is conducting a criminal case, nor a revenue Court is conducting a labour matter. In such eventuality, it can be said that there is want of jurisdiction - In the facts of the present case, the NCLT, Principal Bench, New Delhi has all power, jurisdiction and authority to decide the case in question. There can be an erroneous order of the NCLT, Principal Bench, New Delhi, but, an efficacious alternative remedy is available with the petitioner by way of statutory appeal under Section 61 of the Code, 2016 - thus, there is no reason to exercise our p....... + More
- 2020 (1) TMI 169
Vires of the proviso to Section 167(1)(a) of the Companies Act - Disqualification for appointment of Director - case of petitioner is that petitioner's rights have not been in any manner affected by the insertion of the proviso in as much as the petitioner is not a Director in any company and has not had to vacate his office by virtue of the proviso inserted in Section 167(1)(a) of the Companies Act by the Companies (Amendment) Act 2017 - HELD THAT:- As per Section 167(1)(a) of the 2013 Act, the office of the Director is to become vacant if a Director incurs any disqualification as provided for under Section 164. However, such all-encompassing provision existed in the 1956 Act with each of the grounds for vacation being listed individually. It is important to note that liability under Section 274(1)(g) was not a ground for a Director ....... + More
- 2020 (1) TMI 111
Grant of Interest - Sanction of financial facilities by the first Respondent to the Petitioner - main focus of the arguments of the learned counsel for the Official Liquidator was on the grant of interest at the rate of 12% per annum by the Arbitral Tribunal - HELD THAT:- The contention of the learned counsel for the Official Liquidator was that interest is payable at a rate not exceeding 4% per annum up to the date of winding up order as per Rule 156. In order to test this contention, it is necessary to closely examine Rule 156. Upon examining Rule 156, it is clear that it applies if “interest is not reserved or agreed for”. By implication, it does not apply if interest is agreed upon in the contract out of which the debt arises. In this case, it is the admitted position that the debt arises out of the extension of financial ....... + More
- 2019 (12) TMI 1097
Grant of bail - Illegal mining - unaccounted money - summon for alleged commission of offences punishable under Sections 477A read with Section 120B Indian Penal Code, 1860 and under 628 of the Companies Act 1956 and under Section 448 of the Companies Act, 2013. HELD THAT:- In terms of Section 212 (6) of the Companies Act, 2013, the offence prescribed under Section 448 of the Companies Act, 2013 which relates to making of a statement which is false in any material particulars knowing it to be false or which omits any material fact, knowing it to be material in any return, report, certificate, financial statement, prospectus, statement or other document required by, or for, the purpose of any of the provisions of this Act or the rules made thereunder makes a person culpable under Section 447 of the Companies Act, 2013 - In terms of the amb....... + More
- 2019 (12) TMI 1068
Maintainability of petition - memebership in a club - permanent membership sought, as petitioner is son of a permanent member - whether the EGM ought to be permitted to be held? - HELD THAT:- The holding of a EGM is inherent for the functioning of any company including the Respondent Club. All decisions regarding the manner in which the Club is to be run first vests with the members and then the governing bodies. The Court’s intervention ought to be minimal. Unless there is complete perversity or fraud or illegality in the functioning, there ought to be no interference. Moreover, the entertaining of a petition at the instance of a person who is not a member is a serious issue of maintainability that will have to be determined by the Court. Whether prior approval by the Government is required for placing the amended MOA and AOA befor....... + More
- 2019 (12) TMI 947
Grant of Anticipatory bail - money laundering - siphoning of funds - Director of companies, which had caused a loss to the State by hatching a conspiracy - HELD THAT:- Though undoubtedly, the allegations which are levelled against the applicant/petitioner of his being a Director of four shell companies/ dummy companies which companies are stated to have been created so that they could be taken over by the prime accusedA-1 Mohd. Iqbal for the purpose of laundering his ill-gotten money through engaging in illegal sand mining operations in the State of UP and in/around the District Saharanpur, so that he could project the said ill-gotten money as legitimate assets and these companies were utilized to purchase land and that majority of the transactions made by these companies were outside the banking channels and the companies did not even ma....... + More
- 2019 (12) TMI 859
Siphoning/defalcation/diversion of funds - Vacation of restraint on related party to transfer, selling or alienating of the properties purchased - related party companies - intermediate companies - sister concern - HELD THAT:- There has been siphoning off of funds from Respondent No.1. The balance sheet for the period ending 31.12.2009 also reflects that inter-corporate deposits have been written off by Respondent No. 1. Appellants, thus, have a good ground to say that the amounts invested by them were diverted by Respondent No. 1 to Intermediate Companies which were further diverted to Related Party Companies who have purchased the subject land. The Related Party Companies have a nexus with Dr. Rajesh Aeren, the Managing Director of Respondent No. 1. There is also material on record to prima facie show that in all Related Party Companies....... + More
- 2019 (12) TMI 625
Winding up petition - section 433(e) of the Companies Act, 1956 - Does this Court retain jurisdiction to hear the winding up petition being CP 1 of 2016 and the connected applications thereto? If so, what are the provisions of law applicable to adjudicate the said petition? - HELD THAT:- The Company Judge of this Court retains the jurisdiction to try the aforesaid winding up petition falling in the category of saved petition, even if an insolvency proceeding is initiated against the same company before the NCLT under the provisions of IBC by another creditor, like Devi Trading. The applicable law for the said petition to try out by the Company Court will be the Act of 1956 and Rules of 1959. Should the Provisional Liquidator be released/discharged and directed to make over possession of the properties and assets, books of accounts of the ....... + More
- 2019 (12) TMI 567
Oppression and mismanagement - Jurisdiction to entertain a suit - Rejection of prayer for an ad-interim order of injunction - rejection on the ground of suppression of material facts and also on the ground that this issue would require adjudication on the identical core issue - registration of transfer of shares - bar under section 430 of the Companies Act, 2013 - HELD THAT:- From the facts pleaded in paragraphs 11 to 15 of the plaint and the recourse available under sections 58(1) and 59(2) of the Act, it is clear that the application for non-registration of the shares of the appellant had to be made before the Tribunal under section 59(1) of the Act as this was something that the NCLT was expressly "empowered to determine" - Once the tribunal receives the application under section 59(1) of the Act, it is empowered, under secti....... + More
- 2019 (12) TMI 395
Oppression and mismanagement - Whether an election dispute of a company involving voting through electronic means done under Section 20 of the Companies (Management and Administration) Rules 2014 to the Board of Directors would be amenable to the jurisdiction of the National Company Law Tribunal? HELD THAT:- Section 424 of the Act deals with the procedure to be adopted by the Tribunal and the Appellate Tribunal. The forums are given liberty to go beyond the Code of Civil Procedure by applying principles of natural justice and subject to other provisions governing. Thus, they are not bound by the Code, which is obviously a procedural one. They can also formulate their own procedure - Under Sub Clause (2) of 424 of the Act, the Tribunals are vested with the powers of the Civil Court as granted under the Code of Civil Procedure. Sub Section ....... + More
- 2019 (12) TMI 343
Disqualification of Petitioner to hold the Office of the Directorship of a Company - Section 164 (2) (a) of the Companies Act 2013 - HELD THAT:- The lists dated 08.09.2017 and 01.11.2017 published by the Registrar of Companies, Tamil Nadu, Chennai were the subject matter of challenge before this Court in a batch of cases in BHAGAVAN DAS DHANANJAYA DAS VERSUS UNION OF INDIA, REGISTRAR OF COMPANIES, TAMILNADU CHENNAI [2018 (8) TMI 436 - MADRAS HIGH COURT] and came to be disposed by this Court where it was held that Section 164(2)(a) is read down to the extent it disqualifies the directors in other companies which are scrupulously following the requirements of law, making it clear that no directors in other companies can be disqualified without prior notice. As the Petitioner in this case is similarly placed to the Petitioners in the aforesa....... + More
- 2019 (12) TMI 293
Suit for declaration and permanent injunction - time limitation - rejection of the plaint on the ground that the same was barred by law - Order XXIII Rule 1 of the Code of Civil Procedure - Section 58 of the Companies Act - HELD THAT:- In the instant case it is not the plaintiffs’ allegation that the company had refused to register or transfer shares in favour of the plaintiffs. Thus, the decisions relied upon by Mr. Mitra in ADESH KAUR VERSUS EICHER MOTORS LIMITED AND ORS. [2018 (8) TMI 836 - SUPREME COURT] and SHASHI PRAKASH KHEMKA (DEAD) THROUGH LRS. AND ANOTHER VERSUS NEPC MICON (NOW CALLED NEPC INDIA LTD.) AND OTHERS [2019 (2) TMI 971 - SUPREME COURT] are distinguishable on facts. The next point as to whether the decision of the Company Law Board would prevent the Civil Court from deciding the issues relating to the relief clai....... + More
- 2019 (12) TMI 292
Territorial Jurisdiction to entertain the appeal - proceeding under Section 7 of the Insolvency & Bankruptcy Code, 2016 - HELD THAT:- When the application for recalling was admitted by the learned Tribunal and a prima-facie finding is on record to the effect that the registered office of the company was in Odisha. However, by the order impugned, the Tribunal has found that as the petitioner was in knowledge of the proceeding and had received communication by e-mail about the proceeding, then the same should have been contested. It also appears from the order that the Tribunal recorded that it had the territorial jurisdiction to hear the application when the same was filed by the financial creditor. Prima facie, it is found from the records that the registered office of the company shifted to Odisha on January 16, 2018 and the applicat....... + More
- 2019 (12) TMI 291
Maintainability of petition before the High Court in the case of Insolvency and Bankruptcy Code, 2016 - appellability of orders passed by the Adjudicating Authority - HELD THAT:- It is seen from Section 61(1) that the language used is, notwithstanding anything to the contrary contained under the Companies Act, 2013, any person aggrieved by the order of the Adjudicating Authority under that Part (Part II) may prefer an appeal to the National Company Law Appellate Tribunal - However, in contrast, the very next Section, that is, Section 62 of the IBC provides for an appeal to the Supreme Court against “an order” of the NCLT to the Supreme Court, thereby creating an explicit distinction between the language of the two successive sections between the appeal preferable against the order of an Adjudicating Authority and that of the N....... + More
- 2019 (12) TMI 290
Use of brand name by the two companies managed by the separate group of family members - partition by the CLB after family dispute - Prayer for an order of injunction to restrain the defendant from producing or selling or marketing any product using the said label and carton - short contention of the plaintiff/petitioner is that it is the owner of the copyright in the artistic work on the said label and carton. It has not permitted the defendant to use the said label and carton for carrying on the defendant’s business of manufacture and sale of hair oil - whether or not the defendant is entitled to use the name ‘BANPHOOL’ on its label and carton that it uses to market the hair oil manufactured by it? HELD THAT:- It is not in dispute that the Sharma brothers carried on the business of manufacture and sale of Ayurvedic hai....... + More
- 2019 (12) TMI 289
Disqualification of Petitioner to hold the Office of the Directorship of a Company - Section 164 (2) (a) of the Companies Act 2013 - direction to the Respondents to permit the Petitioner to get re-appointed or appointed as Directors in any other Company without any hindrance - HELD THAT:- The lists dated 08.09.2017 and 01.11.2017 published by the Registrar of Companies, Tamil Nadu, Chennai were the subject matter of challenge before this Court in BHAGAVAN DAS DHANANJAYA DAS VERSUS UNION OF INDIA, REGISTRAR OF COMPANIES, TAMILNADU CHENNAI [2018 (8) TMI 436 - MADRAS HIGH COURT] and came to be disposed by this Court where it was held that Section 164(2)(a) is read down to the extent it disqualifies the directors in other companies which are scrupulously following the requirements of law, making it clear that no directors in other companies c....... + More
- 2019 (12) TMI 194
Winding up proceedings - conduct of Official Liquidator (OL) - rejection of application for impleadment and transfer moved by the appellant secured creditor herein - HELD THAT:- The OL really should have no interest in seeking to retain its control over the company under liquidation since, supposedly, it has no pecuniary interest in the matter. - OL is not willing to let go of its control over the company under liquidation. The working of the office of the OL has, in the past, left us with a sense of disappointment. In fact, if the office of the OL were to discharge its obligations and duties efficiently and completely transparently, may be, the need to evolve the NCLT with jurisdiction, inter alia, to liquidate a company may not have arisen. There are no merit in this submission for the reason, that the personal properties of the guarant....... + More
- 2019 (12) TMI 193
Maintainability of petition - petitioner has contended that the order impugned in this petition be quashed and set aside, not on merits, but only on the ground that it does not comply with the Rules - HELD THAT:- When the order is pronounced under this Rule 151, the Court Master shall make a note in the order sheet, that the order of the Bench consisting of President and Members was pronounced in open court on behalf of the Bench. The argument throughout was that there was no date of pronouncement notified. There was no board prepared of the proceedings and particularly, the pronouncement of the order in open Court. There was no intimation to the parties and that the petitioner’s advocate was in the Court, but no pronouncement was done. Interestingly, according to Mr.Dwarkadas, there is an endorsement at pages 547A and 547B that the....... + More
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