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- 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[c] of the Companies Act, 2013 - HELD THAT:- In view of the application filed by the petitioner under Section 434 [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
- 2019 (8) TMI 371
Validity of Ex-parte award after appointing official liquidator for winding up the company - principal objection taken on behalf of the judgment debtor i.e. Mercantile Ventures Ltd. is that the arbitration proceedings were continued against it while winding up proceedings were ensuing without obtaining leave of the court, as was required under Section 446 of the Companies Act, 1956 - HELD THAT:- What cannot be disputed, to my mind, by Mr. Sachdeva, is the fact that after the Madras High Court had appointed a liquidator qua the judgment debtor company, the arbitration could have only proceeded further with the permission of the concerned company court. In sum the liquidator had to be in seisin of the proceedings. The arbitration proceedings initiated by the decree holder commenced only on 14.03.2007 after this court appointed an arbitrator....... + More
- 2019 (8) TMI 273
Taking over of property - liabilities of the workmen under Section 529A of the Companies Act, 1956 - costs of security provided at the property by the Official Liquidator - HELD THAT:- It is plain that in terms of the proviso to Section 529(1), the security of every secured creditor is deemed to be subject to a pari passu charge in favour of the workman to the extent of the workman’s dues. Consequently, the impugned order of the learned Single Judge requiring the Appellant to undertake the liability of workmen’s dues cannot be said to be contrary to the law - As far as the obligation of the Appellant to provide security at the site of the property in question is concerned, the proviso to Section 529(2) of the Act is clear in this regard that if the secured creditor proceeds to realise security, it ‘shall be liable to pay....... + More
- 2019 (8) TMI 272
Disqualification of Director - Resignation of petitioner from the post of Director of the company - resignation on the ground that the said company had not filed a Form-32 and the petitioner had not filed Form DIR-11 with the ROC - HELD THAT:- The essential facts of the case are not disputed. There is no dispute that the petitioner was a Nominee Director and had no equity stake in the Company. There is also no material to doubt the petitioner’s claim that he had tendered his resignation and despatched the same by a registered post as well as an e-mail. Since the petitioner had resigned from the Board of Directors prior to 01.11.2014, he cannot be held to have been disqualified under Section 164(2)(a) of the Companies Act, 2013 on account of defaults committed by the said company for a period of three consecutive years commencing from 01.11.2014. This Court is informed that the petitioner’s DIN and DSC have been restored - petition allowed.
- 2019 (8) TMI 223
Scope the term “Creditor” - Termination of agreement - Stock Purchase Agreement - scope of assignment - HELD THAT:- In the instant case, there is no dispute or disagreement that the main company petition was presented in this Court on 15.7.2016 after termination of the master services agreement on 15.1.2016. This takes us to the covenant captioned 'Term and Termination' in the Master Services Agreement and the relevant clause is 4.4 captioned 'Effects of Termination'. A perusal of effects of termination adumbrated therein reveals that it has been covenanted that upon expiration or termination of master services agreement, all obligations of parties shall cease with the exception of obligations that accrued prior to the effective date of termination which shall survive and Agilis shall deliver all deliverables o....... + More
- 2019 (7) TMI 1359
Winding up - Misappropriation of funds of the company - HELD THAT:- Admittedly, inasmuch as there being no other assets available with Mr.D.Subramaniam who was the person alleged to have misappropriated the funds of the company in liquidation, and there being no possibility of recovering any further amounts, in the facts of the present case, the company application is closed, with a direction to the Official Liquidator to take necessary steps to complete the liquidation process expeditiously.
- 2019 (7) TMI 1358
Confirmation of the sale of the property - Recovery of balance sale consideration - auction of property - HELD THAT:- It is now well-settled that the role of the Official Liquidator is limited to the extent of ensuring protection of the workers’ interests, in terms of Section 529-A of the 1956 Act (now repealed). This Court, while allowing Company Application No. 820 of 2014, after taking note of the legal position had permitted the applicant company to proceed with liquidating the assets in association with the Official Liquidator. Though it is the argument of the learned counsel for the Official Liquidator that this Court directed sale of assets by following the procedure prescribed under the 1959 Rules, practically, there being not much of variation with respect to the procedure prescribed under the SARFAESI Act and 1959 Rules, i....... + More
- 2019 (7) TMI 1191
Non-filing of Form 32 - cessation of the applicant from the board of the claimant company by the company - violation of Section 303 of the Companies Act - HELD THAT:- In the absence of any other material on record, it is quite clear that the applicant ceased to be a director of the complainant company prior to the filing of the winding up petition. The present complaint would not lie against him - Application allowed.
- 2019 (7) TMI 1133
Removal of Director - Offence of defamation - damage of reputation - offences punishable under Section 500 read with 34 of the Indian Penal Code - HELD THAT:- There is no prima facie case of defamation in the present case as there was no intent on the part of the petitioners to cause harm to the reputation of the respondent as contemplated by Section 499 of the IPC nor can we discern any actual harm caused to his reputation, since the element of mens rea being absent and since the publication was only limited to the Board of Directors of the holding Company and the respective shareholders of these Companies, it could not be said that it was circulated widely over a section of general public. Publication of the news about a resolution being passed by a well acclaimed business house happened to be a business news for the media and both the ....... + More
- 2019 (7) TMI 1024
Maintainability of application - Rule 9 of the Company (Court) Rules - approval of the scheme of amalgamation under Section 391 of the Act and not Section 394 of the Act - whether the present appeal, directed against an order dismissing a review petition is maintainable? - HELD THAT:- The approval of the scheme of amalgamation was under Section 391 of the Act and not Section 394 of the Act. The corresponding provision in the Companies Act, 2013 (‘2013 Act’) is Section 230. However, at the relevant time when the appeal was filed, the provision relevant for that purpose was Section 391(7) of the Act. Although in terms of the Companies (Second Amendment Act) 2002, Section 391 (7) stood omitted, the said amendment was to take effect only from date notified by the Central Government. The purpose behind omitting the Section 391 (7) ....... + More
- 2019 (7) TMI 966
Recall of order - sufficient reason for recall of order present or not - delay in filing the application - HELD THAT:- The reasons are heart and soul of any judicial determination, in absence of which the order cannot survive. A Judge, who decides an issue in one or the other way, is required to disclose his mind and give the reasons to enable not only the superior court but also the litigating parties as what weighed with him in deciding the matter the way he did, otherwise they would remain unaware of the premise on which decision of the Court is founded. Therefore, it is always necessary for the learned Presiding Judge to disclose his mind, even if not in details, at least briefly. Application revived - appeal allowed - The Registry to list the application before the learned Company Judge on 19.07.2019.
- 2019 (7) TMI 836
Dissolution of company in liquidation - Winding up order - issuance of Form 69 - HELD THAT:- Form 69 (notice of rejection of proof of debt) was issued to said Om Prakash Rawal by the office of OL. Amount deposited by secured creditor standard chartered bank towards dues of ex-workmen - HELD THAT:- Since no claim was received, therefore, the OL had sent the letter dated 12/9/2018 followed by the reminder dated 9/1/19 to the standard chartered bank to provide the bank account details such as name of beneficiary, name of account, full account number and IFS code of bank branch to remit the said amount. But since the details have not been provided by the Standard Chartered bank therefore, the amount is lying with the OL - In view of the provisions contained in Section 555 of the Companies Act the OL is permitted to deposit this amount into Pu....... + More