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Companies Law - Case Laws
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2025 (6) TMI 1897
Invocation of jurisdiction of Court for quashing of complaint case - abuse of process warranting quashing at the pre-trial stage - applicability of Section 447 of the Companies Act, 2013 - HELD THAT:- Upon perusal of the order passed by this Court in Shri Ishtiaq Hussain Siddiqui [2024 (12) TMI 1589 - MADHYA PRADESH HIGH COURT], it is found that the issue involved in these cases is similar to that case decided by this Court. Therefore, there is no reason for taking a different view which had already been taken dealing with almost all issues raised in the present petition. The observation made by this Court on an earlier occasion held that 'it is clear that trying offence by the respondent under Section 447 applying the same retrospectively, is apparently illegal and it can be considered to be a malicious prosecution.'
Conclusion - The provisions of Section 447 of the Companies Act, 2013 cannot be applied retrospectively to transactions which occurred prior to its insertion in the Act.
Petition allowed.
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2025 (6) TMI 1826
Seeking grant of anticipatory bail - forgery and misappropriation of shares - no document signed to give her consent or authorize anyone to transfer her shares in favour of her husband - delay in lodging FIR - HELD THAT:- It is an admitted fact that the Complainant is relative of the Applicants herein. It is also an admitted fact that there is an ongoing acrimonious matrimonial discord between the Complainant and her husband, which is evident from the proceedings under the DV Act, divorce proceedings, maintenance disputes, and mediation attempts pursuant to orders passed by this Court. The FIR was registered on 22.03.2025 pertains to an event of transfer of shares allegedly occurred on 30.07.2022, more than two years prior. There is no explanation offered for this delay in lodging the FIR, particularly when the Complainant had already been engaged in extensive litigation against her husband since 2020.
The Company appears to be a closely held family-run business, and there is no public shareholding involved. FIR does not disclose as to when the Complainant became aware about the alleged share transfer. It only mentions about the report of independent auditor, who conducted audit of the Company in 2023 - The FIR is silent about the exact details about the date on which the Complainant became the shareholder and when the Complainant became aware about the auditor’s report and List of Share Transfer of 2023. The time gap between the incident of alleged forgery and misappropriation and filing the complaint is also not explained in the FIR.
The FIR is based on an incidents of share transfer from the Complainant to her husband and then to Mr. Amanpreet Singh Malhotra, the Applicant herein, which are now transferred back to the Complainant. The Applicants have given justification for such transfers, which will be considered during the trail. The fact remains that there have been transfers that have been documented and are admitted by the Applicants. Hence, entire investigation revolves around the documentary evidence, which is already with the IO as reflected in the Status Report.
The investigation in the present case hinges entirely on documentary evidence comprising of the Board Resolutions of the Company, List of Share Transfer and Form No. SH-4. The Applicants have provided all the documentary evidence and repeatedly asserted that no such Form No. SH-4 was ever executed - Notably, the custodial interrogation is requested only to ascertain the possession of Form No. SH-4. When no such document exists as admitted by the Applicants, there is no purpose of custodial interrogation of the Applicants.
Conclusion - Considering the overall facts and circumstance of the case, there is absence of necessity for custodial interrogation. Having carefully examined the contents of the FIR, Status Report and oral submissions of the Applicants, Complainant and the State, this is a fit case for grant of Anticipatory Bail to the Applicants with necessary conditions to ensure cooperation and appearance before the IO for the purpose of investigation.
The Applicants are directed to be released on bail on furnishing a personal bond in the sum of Rs. 1,00,000/- for each of the Applicant with two sureties of the like amount to the satisfaction of the IO/SHO, on fulfilment of conditions imposed - bail application allowed.
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2025 (6) TMI 1674
Winding up of the Appellant-Company, under Section 433(e) of the Indian Companies Act, 1956 - obligation to refund the security deposit - uncrystallized debt - bonafideness of defences raised by appellant-company - HELD THAT:- At the outset, there is no dispute whatsoever about the refundable security deposit of Rs.50 lakhs. At some stage, therefore, this deposit had to be returned by the Appellant- Company particularly after its manufacturing business declined and there were difficulties in making supplies. There are findings which were not even attacked in this appeal about the contract being terminated. The security deposit had therefore, to be returned.
The agreement, as recorded by the learned Company Judge, had already been terminated. The writings mainly referred to the modalities for refund of the security deposit amount with interest. Even the offer to supply goods was not quite bona fide. There is no material on record to indicate that the Appellant-Company was indeed able to supply the goods - All the confusing, contradictory defenses, which were far from bona fide have been considered in detail by the learned Company Judge. The learned Company Judge concluded that these defenses lacked merit and based upon the same, the Winding Up Petition could not be resisted. Upon an independent evaluation, it is satisfied that the defenses were neither plausible nor bona fide. There is no reason to interfere with or take any different view in the matter.
The learned Company Judge has also taken cognizance of the fact that the financial institutions had filed proceedings against the Appellant-Company for recovery of crores of rupees. The Receiver had also been appointed, and no activities of production were carried out by the Appellant- Company for the last over five years. The learned Company Judge also took cognizance of the circumstance that the Appellant-Company was offering to pay the amounts during the pendency of the winding up proceedings, but no payment was being made. These are all relevant considerations. There was nothing shown to contradict these findings except for trying to list the financial misfortunes suffered by the Appellant company.
Conclusion - The Appellant-Company is liable to repay the security deposit along with interest, no bona fide dispute existed to resist winding up, and the winding up order rightly passed under Section 433(e) of the Indian Companies Act, 1956.
Thus, no case is made out to interfere with the impugned judgment and order winding up the Appellant- Company. There is no error either in the findings recorded or in the approach of the learned Company Judge - appeal dismissed.
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2025 (6) TMI 1603
Challenge to proceedings which were held under Sub Section 3 of Section 55 of the Companies Act, 2013 - Preference Shareholder has individually enforceable statutory rights under Sub Section (3) of Section 55 of the Companies Act, 2013 or not - HELD THAT:- The Forum of the learned NCLT and the consequentially preference of the Appeal before this Tribunal under Section 421 of the Companies Act, 2013, would not be available to him in the exclusive admitted status of being a “Preference Shareholder’’, as Shareholders being investors, have no right, the issue which has been settled by the larger Bench, in Clarion Health Food LLP v. Goli Vada Pav Pvt. Ltd., through Interim Resolution Professional [2024 (11) TMI 1050 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, PRINCIPAL BENCH, NEW DELHI] where it was held that 'we are of the view that the appellant being a shareholder of the company is not the “aggrieved party” as per the provisions of the Code. The appellant has no locus to file this appeal and the same is not maintainable. Accordingly, the appeal is dismissed.'
Hence, the findings, which has been recorded by the learned Adjudicating Authority do not suffer any apparent legal vices, which may call for an interference by this Appellate Tribunal in the exercises of its Appellate Jurisdiction under Section 421 of the Companies Act, 2013.
Conclusion - Exclusively, because of the fact that the present proceedings at the behest of the “Preference Shareholder’’, would not be maintainable, as having no sustainable and legally enforceable rights.
Appeal dismissed.
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2025 (6) TMI 1188
Oppression and Mismanagement - Entitlement to nominate one director on the Board of the Company - date of acquisition of 1/3rd shares of the Company - denial of prayer for representation on the Board of the Company - analysis of Section 397 read with Section 402 of the Companies Act, 1956 by the CLB and its effect on the question of alleged oppression.
Whether the CLB, in the impugned order, rendered perverse findings with regard to the changes / deletions / modifications made in the register of share transfers by holding that the same did not amount to manipulation of the records and that the same did not amount to fraud, while holding against Aasia Properties? - Whether the CLB was justified in holding against Aasia Properties i.e. the original petitioner to come to a conclusion that it became 1/3rd shareholder in the Company only on 28.01.1983, solely on the basis of the dates mentioned in the share certificates, ignoring the alleged manipulations made in the register of share transfers in the records of the Company? - Whether the impugned order passed by the CLB suffers from perversity while rendering a finding that Aasia Properties became a shareholder of the Company only on 28.01.1983 without specifically finding that the entries made in the register dated 30.08.1982 were null and void? - HELD THAT:- The party that approaches the Court (in this case the 'CLB') is required to stand on its own legs and to produce positive evidence about assertions made in the petition. Even if the allegations of alleged manipulation are to be taken into consideration, that by itself, cannot be treated as positive evidence for demonstrating the date on which the shares were transferred in favour of Aasia Properties to become 1/3rd shareholder in the Company. Under the aforementioned provisions of the Companies Act, a share certificate assumes vital importance and it is statutorily recognized as prima facie evidence of title in shares. In the present case, the share certificates, that crucially bear the stamp of the ROC, show the date '28.01.1983' - The CLB correctly relied upon the said document to hold against Aasia Properties on its claim of having become 1/3rd shareholder prior in point of time i.e. 30.08.1982. The primary and the basic documents in this case i.e. the share certificates demonstrated that it was on 28.01.1983 that Aasia Properties became 1/3rd shareholder of the Company. The CLB also correctly came to the conclusion that the share certificates under Section 84 of the Companies Act have precedence over Section 164 thereof, for the reason that the register of members is in control of the Company and it can be susceptible to manipulation.
The Supreme Court in the case of Mannalal Khetan and others vs. Kedar Nath Khetan and others [1976 (11) TMI 135 - SUPREME COURT] found that unless a proper instrument of transfer duly stamped in terms of Section 108 of the Companies Act is produced, no entry recording transfer of shares can be made in the register. Emphasis was placed on the words 'shall not register' to hold that the same are of mandatory character. Rahejas are justified in relying upon the said position of law to contend that Aasia Properties, in the present case, failed to justify its claim of having become 1/3rd shareholder of the Company on 30.08.1982. Therefore, questions 'A', 'B' and 'C' are answered against Aasia Properties.
Interpretation and effect of Article 38 of the Articles of Association relating to right of pre-emption of purchasing the shares - Whether the CLB committed an error in applying Article 38 of the Articles of Association pertaining to the right of pre-emption while holding that the transfer of shares by the Shah Group in favour of the B. Raheja Group was not hit by the said Article? - Whether the CLB erred in holding that even though the Raheja Group had not given their consent in writing for the transfer of shares made subsequent to 28.01.1983, Article 38 of the Articles of Association could not be applied to hold in favour of Aasia Properties? - Whether the CLB was justified in holding that it would be a fruitless exercise to consider violation of Article 38 of the Articles of Association as regards transfer of shares post 28.01.1983 as the Raheja Group, in any case, held 2/3rd shares, thereby misinterpreting Article 38 and in the alternative, failing to give effect to the same in accordance with law? - HELD THAT:- The right of pre-emption would arise only if 2/3rd shareholders do not approve of transfer of shares to third party. In other words, in a situation where 2/3rd shareholders do approve such proposed transfer of shares, there is no question of the right of pre-emption being exercised - Since this Court has already come to a conclusion hereinabove that the finding rendered by the CLB is correct, to the effect that Aasia Properties became 1/3rd shareholder only on 28.01.1983, there is no question of applying the right of pre-emption under Article 38 of the Articles of Association to the transfer of 1/3rd shares by the Shah Group to the B. Raheja Group on 15.01.1983. At that point in time, Aasia Properties was not even a shareholder and therefore, there was no question of it having any right of pre-emption in the matter.
On a plain reading of the Article 38, this Court is unable to agree with the aforesaid contention raised on behalf of Aasia Properties. In this context, the contention raised on behalf of Rahejas appears to be justified that when a restriction is specified in an Article, it must be read strictly and in the case of any ambiguity, it must be construed in favour of the shareholder, who is desirous of making the transfer - There is also substance in the approach adopted by the CLB that even if express consent of 2/3rd shareholders was not manifested by the material on record, the entire exercise would be fruitless, for the reason that Raheja Group admittedly had 2/3rd shareholding in the Company. It is also of no consequence for Aasia Properties to contend that if the transfers made subsequent to 28.01.1983 are to be set aside by applying Article 38 of the Articles of Association, such shares would automatically stand transferred to Aasia Properties. This is because even if the contention raised on behalf of Aasia Properties on the interpretation of application of Article 38 of the Articles of Association, is to be accepted, the transferred shares would revert back to the transferors.
The CLB correctly came to the conclusion that the exercise insisted upon by Aasia Properties on the basis of its interpretation of Article 38 of the Articles of Association would be a fruitless exercise. In that light, the questions are also answered against Aasia Properties and in favour of Rahejas.
Whether the CLB was justified in holding that once oppression is established while exercising jurisdiction under Section 397 of the Companies Act, the winding up of the Company on just and equitable grounds is automatic and the CLB is only required to form an opinion that such winding up would not be in the interest of the company / shareholders, in the teeth of the settled position of law laid down by the Supreme Court? - Whether the CLB correctly applied the ratio of judgements of the Supreme Court in the cases of Shanti Prasad Jain Vs. Kalinga Tubes Limited [1965 (1) TMI 17 - SUPREME COURT], Needle Industries (India) Limited Vs. Needle Industries Newey (I) Holding Limited and others [1981 (5) TMI 89 - SUPREME COURT], Sangramsinh P. Gaekwad Vs. Shantadevi P. Gaekwad (dead) through LRs [2005 (1) TMI 409 - SUPREME COURT], Kamal Kumar Dutta Vs. Ruby General Hospital Limited [2006 (8) TMI 313 - SUPREME COURT] and Hanuman Prasad Bagri and others Vs. Bagress Cereals Private Limited and others [2001 (3) TMI 931 - SUPREME COURT]? - Whether the original petitioner i.e. Aasia Properties is justified in contending that even if the requirements of Section 397 of the Companies Act are not satisfied and although powers under Section 402 thereof cannot be exercised, the CLB can still exercise power beyond the scope of the said provisions for doing justice between the parties? - HELD THAT:- A bare perusal of Section 397 of the Companies Act indeed shows that twin requirements are to be satisfied before the CLB could exercise power under the said provision. The first requirement is for the CLB to come to a conclusion under Section 397(2)(a) of the Companies Act to the effect that the affairs of the company are conducted in a manner prejudicial to public interest or in a manner oppressive to any member / members. The second requirement under Section 397(2)(b) is for the CLB to reach a conclusion that the facts justify issuing an order of winding up on the ground that it is just and equitable that the Company be wound up, but for the fact that winding up of the Company would unfairly prejudice such member - a perusal of the impugned order passed by the CLB shows that, upon an analysis of Section 397 of the Companies Act, that once oppression is established, the winding up on just and equitable grounds would be 'automatic', and that the CLB is only required to form an opinion that such winding up would not be in the interest of the company / shareholders. This Court is of the opinion that the aforesaid finding rendered by the CLB is unsustainable in the light of the settled position of law.
Even if much emphasis is placed on behalf of Aasia Properties on paragraph 172 of the judgement of the Supreme Court in Needle Industries (India) Ltd. and others vs. Needle Industries Newey (India) Holding Ltd. and others and paragraph 199 of Sangramsinh P. Gaekwad vs. Shantadevi P. Gaekwad (dead) through LRs, wherein the Supreme Court has indicated that the Court would always have the power to do substantial justice between the parties, observations made in other portions of the said judgements cannot be ignored.
Thus, it becomes evident that the requirements of Section 397 of the Companies Act are indeed required to be satisfied for the CLB in the instant case to have exercised jurisdiction, even if of wide amplitude, considering Section 402 of the Companies Act. It cannot be disputed that a Court or an authority, which is created by a Statute, can exercise power limited to the scope provided under that Statute itself. Such a Court or authority cannot exercise powers beyond the provisions of such a Statute. In that sense, it is evident that the CLB, in the present case, assumed jurisdiction to entertain and pass orders on the company petition filed by Aasia Properties, invoking jurisdiction under Section 397 of the Companies Act, only upon Aasia Properties satisfying the twin requirement indicated under the said provision. Upon failure to satisfy the said requirements, the CLB would have no power or authority to pass an order.
Even if it was to be held that such power could be exercised, it would necessarily have to be justified by the facts of the individual case. It cannot be said that the party that approaches the CLB invoking jurisdiction under Section 397 of the Companies Act and seeking even wide-ranging reliefs under Section 402 thereof, is absolved of the burden of satisfying the statutory provisions, to claim the relief, which was not even claimed in the petition filed before the CLB. Therefore, this Court is unable to agree with the finding rendered by the CLB in paragraph 30 of the impugned order.
Whether the CLB was justified in directing that Aasia Properties had right to nominate a non-functional director on the Board of the Company, despite holding that it had failed to make out the case of any oral understanding of right to nominate a director on the Board? - HELD THAT:- There is no dispute about the fact that at least from 1989 onwards, if not earlier, Aasia Properties were aware that 1/3rd shares of the Shah Group had been transferred to the B. Raheja Group and that, according to the Company, Ashok Hinduja was no longer the director of the Company. Aasia Properties was holding 1/3rd shares and it continued to do so. It is undisputed that rights shares were always offered to it, ensuring that 1/3rd shareholding of Aasia Properties was and is maintained throughout. It is a matter of record and so found by the CLB that whenever Aasia Properties demanded documents and inspection, the same was indeed granted by the Company. These factors indicate that Aasia Properties essentially played the role of an investor in the Company. The hotel run by the Company has been doing excellent business and there is no dispute that Aasia Properties, as 1/3rd shareholder, is enjoying benefit of such business. Therefore, the fact that Aasia Properties approached the CLB, 23 years after the first alleged trigger point of the cause of action or at least 17 years after gaining knowledge about transfer of 1/3rd shares by the Shah Group to the B. Raheja Group and the claim of the Company that Ashok Hinduja was no longer the Director, shows that there was indeed delay on the part of Aasia Properties to claim any relief and this would clearly be a relevant factor even if equities were to be considered. But, the CLB ignored all these factors and proceeded on equitable considerations to hold in paragraph 29 of the impugned order that, in the light of the long association of Aasia Properties as 1/3rd shareholder and it being an investor, denial of 'equitable right to have a nominee on the Board' was an act of oppression.
The CLB compounded the error by holding in paragraph 30 that, once oppression was established, winding up on just and equitable grounds was automatic and thereupon granted the impugned declaration of the right of Aasia Properties to have its nominee as a non-functional director on the Board of the Company. The said approach adopted by the CLB is found to be unsustainable and hence it is liable to be set aside.
This Court is of the opinion that the impugned direction issued by the CLB granting limited relief to Aasia Properties cannot be justified on the ground that being the 1/3rd shareholder, it has the right at least to be an observer and to be a non-functional director on the Board of the Company. When Aasia Properties failed to succeed in its stated case before the CLB and in the absence of any such provision in the Articles of Association of the Company, there was no basis for the CLB to have issued such a direction. The said direction, on facts and on law, is unsustainable and hence deserves to be set aside. Question 'J' is accordingly answered against Aasia Properties and in favour of Rahejas.
Whether the petition filed by the original petitioner Aasia Properties before the CLB was hit by limitation? - HELD THAT:- The CLB has rendered findings in favour of Aasia Properties in the impugned order. Rahejas have challenged the same again on the ground that if the trigger point for the cause of action occurred in the year 1981-82 or at least in the year 1989, filing of the company petition in September 2005 was barred by limitation. But, the CLB has taken into account the assertions made on behalf of Aasia Properties with regard to the inspection provided in the year 2004, when it became aware about the alleged manipulations in the record giving cause of action for approaching the CLB. Since the allegation of oppression of minority shareholder was a ground taken before the CLB and Aasia Properties made specific assertions with regard to the material being available in the year 2004, showing continuous oppression and hence the need to approach the CLB, this Court is of the opinion that the finding rendered by the CLB in that regard does not deserve any interference. Hence, the question is answered by holding that the original petition filed by Aasia Properties before the CLB cannot be said to be hit by limitation.
Conclusion - i) The CLB's findings that Aasia Properties became a shareholder on 28.01.1983 and that alleged record manipulations did not amount to fraud were upheld. ii) The CLB's interpretation and application of Article 38 were affirmed, rejecting Aasia Properties' claims on pre-emption rights. iii) The CLB's erroneous holding that winding up on just and equitable grounds is automatic upon oppression was set aside. iv) The CLB's direction granting Aasia Properties the right to nominate a non-functional director was set aside as unsupported by law and facts. v) The petition was held not barred by limitation.
This Court is of the opinion that the impugned order deserves to be set aside to the limited extent of the direction issued in favour of Aasia Properties on the basis of a declaration that it had a right to nominate a non-functional director on the Board of the Company. - Appeal disposed off.
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2025 (6) TMI 1187
Waiver of condition contained under section 43(3) of of LLP Act, 2008 stipulating requirement of minimum of 1/5th of total number of partners to file a petition under Section 43 of the LLP Act - whether in the absence of any specific provision for waiver in the LLP Act is it not permissible under law to rely upon Companies Act, to seek waiver? - HELD THAT:- Admittedly impugned order does not discuss merits and is passed only on eligibility criteria. Both the Ld. Senior counsels are ad-idem to say the Ld. NCLT was though right in saying the provisions of Section 242 and 244 would not be applicable in the facts of the case as have not been incorporated per Section 67 of the LLP Act, yet admitted the merits of the company petition have not been discussed in the impugned order, though per respondent the merit was never argued.
Nevertheless to the limited effect viz eligibility criteria the impugned order does not require any interference but admittedly it does not discuss if the company petition contains such information as to enable the Tribunal to take a suo moto action per section 43(1)(a) of LLP Act. Thus with consent this appeal is disposed off by maintaining the impugned order but in case a petition is filed in future before the Ld. NCLT, the Ld NCLT may examine as to if the facts exist to exercise its suo moto power by examining its contents thereof and the impugned order shall not come in the way.
Appeal disposed off.
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2025 (6) TMI 1101
Rejection of request of refund of the amounts deposited by the applicant towards sale consideration - Validity of sale conducted under Annexure A tender notification - principle of Caveat Emptor - As is where is and whatever there is - HELD THAT:- Caveat Emptor is the general rule applicable to the sale of goods. Unless there is an express or implied condition or warranty regarding the quality of the goods or there is fraud, the buyer must exercise proper caution. Let us examine the extent to which the buyer should exercise caution in an auction sale, where goods are sold by description, and the auction notification contains an “as is where is and whatever there is” clause.
In the case at hand, the description of the goods in the Annexure A auction notification is “Copper ingots”. Admittedly, the goods turned out to be “copper alloy ingots”. Pure copper and copper alloys are different commercial metals that have different qualities and uses. Hence, the articles available at the site did not answer the description in Annexure A - Even if it is to be assumed that the copper ingots and copper alloy ingots are not materially different and the description cannot be faulted, before mulcting the purchaser with the liability to take a defective article by applying the condition “as is where is and whatever there is”, it has to be examined whether the issue comes within the purview of Sections 15 and 16 of the Sale of Goods Act.
Section 16 of the Sale of Goods Act deals with the implied condition or warranty as to quality or fitness. The proviso to Section 16(2) says that if the buyer has examined the goods, there shall be no implied condition as regards defects which such examination ought to have revealed. The Courts have considered the scope and extent of the above provision and held that the defects can be either patent or latent and in cases where there is a latent defect that could not be detected on examination, the purchaser will have to be given the benefit of the implied condition as regards the quality of the goods - The suit was filed for damages against the seller and their agent, without impleading the manufacturer. The trial court decreed the suit in part against the seller and exonerated the agent. The appeal filed by the seller was dismissed by the First Appellate Court, and the second appeal filed against the judgment was dismissed by the above-referred judgment. The Court considered the issue in the context of Sections 15 and 16 of the Sale of Goods Act.
It can thus be seen that in the case at hand, the available property did not meet the description which was given in the auction notice. It is also evident that even if the description is treated to be sufficient, the goods had latent defects which could not have been identified by the buyer at the time of its inspection. The law is settled, as can be seen from the above-referred judgments, that on the admitted facts, the buyer cannot be nonsuited on the ground that the sale is on “as is where is and whatever there is basis”. This is not a case where the Official Liquidator can claim shelter under the said clause, and thus the applicant is entitled to succeed.
Conclusion - The sale was vitiated by material misdescription and latent defects, which the buyer could not have discovered by reasonable inspection. The "as is where is and whatever there is" clause and the principle of caveat emptor do not absolve the Official Liquidator from liability in such circumstances.
The sale conducted under Annexure A tender notification is set aside - Application allowed.
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2025 (6) TMI 1019
Seeking validation of the sale and transfer of 2,34,000 equity shares in favour of Applicants - valid transfer took place only on the invocation of call option or not - call option granted under the MOU and amended agreement created an irrevocable and legally enforceable right in favour of the Applicants or not - HELD THAT:- On March 1, 2009 the Respondent No. 2, the company in liquidation and the Applicants herein had executed a Memorandum of Understanding for transfer of shares for certain consideration. The Applicants herein were under the MOU vested with the right to exercise a call option in the event of the company in liquidation not complying with its obligations under the MOU. Company in liquidation failed to comply with its obligations within the stipulated time. Upon such failure, the Applicants herein issued notice dated July 2, 2010 giving 30 days to TWDPL to infuse the funds failing which the Applicants would invoke call option - It is evident that though this right stood crystallized at that point in time, the Company in Liquidation requested the Applicants not to exercise the same and sought extensions time and again. Upon reading of the subsequent Amended Agreement it is clear that the parties have continued to recognize and have preserved the irrevocable nature of the call option and have just provided extension of time till March 31, 2013 to exercise the ministerial act of invoking the same. Thus, it was the obligation of the Company in Liquidation to infuse the money on failure of which the Applicants had liberty to invoke the rights over the shares which have been given as security. Therefore, the Applicants in the present case became legally entitled to exercise their irrevocable right on March 31, 2013.
No doubt, pursuant to Section 441 of the Companies Act, winding up of a company by court shall be deemed to have commenced at the time of presentation of the petition which in the present case would be March 28, 2014 - Section 536 (2) declares the transactions after commencement of the winding up void but leaves discretion to the court to make appropriate orders in that regard. That, the jurisdiction vested is equitable and is meant to be exercised as such.
It has been held in Mukesh Mehra v. State Bank of India that an incomplete transaction cannot be validated. It is also settled, that if a transfer has not been completed prior to the winding up order, no application would lie to the Court for a direction that the Official Liquidator to complete the transfer. Therefore the question that this Court is required to consider before validating the transaction of the Subject Shares under Section 536 (2) of the Act is whether the act of invocation has been completed prior to winding up order.
The facts show that there was a pre-existing contract between the parties well before the filing of the winding up proceedings and the subsequent enforcement of the terms cannot be questioned unless such enforcement is contrary to the terms -
There can be no assistance to the Official Liquidator from the judgment in the case of Nagabhushanam v. Ramchandra Rao and Others as the same was rendered in a different fact situation. The Madras High Court was deciding in the Second Appeal, the priority between the auction purchasers at the Court sales and the transferee under the deed of assignment over the transfer of certain shares in Limited Companies. The Court in that case was dealing with the question of whether a deed not complying with the terms of the Act, and the Articles of Association is valid to transfer shares as against a person who has acquired the right to them by a Court-sale in manner required by the provisions of the Civil Procedure Code. But this Court is not considering the same, for the reason that the transaction in the present case has been discussed in detail and the right of the Applicants is held to be irrevocable and complete and relevant judgments in that context have been discussed.
Whether the Applicants in their Applications have pleaded and proved that the transaction was done in a bona fide manner and in the best interest of the company? - HELD THAT:- This Court has in the case of Helbon Engineers Pvt Ltd. v. Ferral Anant Machinery Manufacturers Pvt Ltd held that the discretion to the court by the use of the words “unless the court otherwise orders” has to be kept in mind. That if all dispositions of property made by a company in liquidation during the interregnum between the presentation of the petition for winding up and the passing of the order for winding up, would be null and void, that would completely paralyze the business of company. Such interpretation, could lead to catastrophic situation which should be averted.
In the facts of the case, as noted above, the Applicants have acted pursuant to a pre-existing contractual agreement entered into well before filing and admission of the winding up proceedings. The Applicants have merely exercised their contractual irrevocable right of call option under Article 5 of the MOU and amended agreement upon TWDPL’s continued failure to infuse the agreed funds into WREPL. The invocation of Call Option, issuance of consideration, and completion of transfer were initiated and acted upon as ministerial action - the transaction has been executed in accordance with rights long crystallized by the MOU and Amended Agreement, prior to the admission of the Company Petition and prior to order of winding up and is not only bona fide but also fair, just and reasonable and deserves to be protected.
Conclusion - The sale and transfer of 2,34,000 equity shares of the company in liquidation pursuant to the MOU and its amendment is validated and ratified under Section 536(2) of the Companies Act, 1956.
The sale and transfer of 2,34,000 equity shares of WREPL in favor of Applicants on 4th September 2014 effected pursuant to the Memorandum of Understanding dated 01st March 2009 as amended by agreement dated 23rd December 2011 is ratified - Application allowed.
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2025 (6) TMI 864
Challenge to Communication dated 23.10.2023, rejecting the NDH-4 Form issued by the Assistant Director, Ministry of Corporate Affairs/Respondent No. 3 - HELD THAT:- If Rule 3(A) of the Nidhi Rules is perused, in view of the proviso, there is no remedy appears to be available to the company like the petitioner after rejection of NDH-4 Form. Moreover, the company cannot function after rejection. It is also submitted that on rejection, the company could not submit any form/report online.
Even on perusal of Rule 23, which contemplates the opportunity of being heard shall be given to the concerned Nidhi Company by the Central Government before appointing Special Officer in pursuance to the enforcement of compliance of the Rules. At any rate, the opportunity of explanation is required to be given to the Petitioner. On the face of order, it appears that there is no consideration to the extended period due to outbreak of Covid-19 Pandemic - before taking such drastic steps of rejection, an opportunity of explanation as well as if there is any deficiency, opportunity for compliance is required to be given to the Petitioner. There is provision of imposing penalty for non-compliance, however, recourse of rejection of NDH-4 Form is unwarranted specifically when there is no show cause notice as per the provisions of law. Accordingly, the impugned communication is liable to be set aside.
The impugned Communication dated 23.10.2023 (Annexure J) issued by Respondent No. 3 – Assistant Director, Ministry of Corporate Affairs is hereby quashed and set aside - Petition allowed.
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2025 (6) TMI 863
Oppression and mismanagement - unilateral appointment of Auditor, without there being prior consent of the Petitioner/Respondent No.2 - Petitioner was denied the access to the records of Respondent No.1 company - HELD THAT:- In the proceeding, which was held on 26.03.2025 i.e., the proceedings in Mrs. Rekha Prabhahar Vs. M/s. ELV Supply Chain Solutions & Services Private Limited & Anr., which has been filed by the Appellant herein, which are also being held under Sections 241 & 242 of the Companies Act, 2013, a specific finding has been recorded that, a forensic auditor has already been appointed and he has submitted his report, to which the petitioner of the Company Petition, (CP)(CA)/23(CHE)/2025, i.e., the Appellant herein had sought time to file reply/objection to the forensic auditors report.
Conclusion - Owing to the fact that, as of now, the forensic auditor has already been appointed, and upon conduct of Audit, he has already submitted his report, to which the petitioner i.e., the Appellant herein, has sought time to file an objection, to the forensic audit report, under these circumstances, for all practical purposes, owing to the observations made in the order dated 26.03.2025, no cause of action as of now survives for the Appellant, as of now, as against the Impugned Order of appointing the forensic auditor.
The Company Appeal for all practical purpose for the cause agitated has become infructuous and the same is accordingly ‘dismissed’ as having been rendered infructuous - Appeal dismissed.
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2025 (6) TMI 774
Oppression and Mismanagement - Declination to grant an Interim Order prayed for to the effect of keeping the proposal of the proposed EGM of Respondent No. 1 in abeyance - entitlement to the discretionary remedy of interim relief under Sections 241 and 242 of the Companies Act, 2013 - Breach of service contract - HELD THAT:- Looking into the findings and particularly the observations that the Appellant has to come with clean hands for grant of equitable relief, the rejection of the prayer for the grant of interim relief cannot be legally faulted with, because the actions of the Appellant have prima facie have resulted in continuous breach of service contract.
Besides that, the grant of an interim relief in a judicial proceeding, is absolutely a discretionary remedy depending upon the establishment of the prima facie case. It is not mandatory to exercise discretion by the court exercising the judicial powers, in a manner expected by the Applicant to the proceedings, for the grant of an interim relief - a denial to grant the interim relief by the impugned order of 01.05.2025 owing to the conduct which, was considered by the Ld. Tribunal as unbecoming of a medical officer for Respondent No. 1, to whom the Appellant owed an allegiance, does not suffer from any legal vices and hence does not call for any interference.
Conclusion - The interlocutory orders are discretionary and need not be granted merely because the applicant desires it. The denial of interim relief in the present case was consistent with the established principles governing such remedies and did not prejudice the Appellant's right to seek substantive adjudication.
Apart from the fact that, it is an interlocutory order, the impugned order is based on sound reasoning, and the equity does not support the case of the Appellant. The appeal is ‘misconceived’ and the same is accordingly ‘rejected’
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2025 (6) TMI 366
Mismanagement and oppression - Division of shares among partners where shares were held in the name of partnership firm - Challenge to proceedings held u/s 59, 241, 242, and 244 of the Companies Act, 2013 - Partnership firm was not a recognized member under the Companies Act, 2013 - HELD THAT:- When the Company Petition was taken up as fresh before this Appellate Tribunal on 19.03.2025, the Appellant had since failed to place on record certain relevant documents, they were granted time, which was further extended by an order of 26.03.2025. This Appellate Tribunal has passed an order on 28.03.2025, whereby the request was made to the parties to venture to settle the dispute and find out the avenues so that the controversy may be laid to rest and for which they were directed to complete the instructions.
When the Appeal was taken up next date i.e. on 01.04.2025 in compliance of the order dated 28.03.2025 passed in this Appeal, the parties to the Appeal submitted that they are open for mediations subject to certain conditions and restrictions, that they had in settling the controversy among themselves, for which both the parties have sought three days’ time to place the terms of settlement on record.
The controversies inter- se between the parties were to be settled based on the memorandum as submitted by the Appellant. The Respondents were apprehensive with regards to the conditions contained under Clause C of para 6 pertaining to the cost payable towards the mediation, which was observed to be borne by the 1st Respondent Company. The same has been vehemently objected by the Respondent’s Counsel, though they had kept themselves open for mediation, but the cost aspect was not acceptable by them. During the course of the proceedings, the parties have expressed their unanimity that both the parties would be bearing the 50% of the cost of mediation”.
Conclusion - i) The petition for division of shares held by a partnership firm was dismissed as not maintainable. ii) The allegations of mismanagement and oppression were found unsubstantiated and dismissed.
Appeal closed.
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2025 (6) TMI 202
Initiation of winding up proceedings under Section 271 and 272 of the Companies Act, 2013 against M/s Blackberry Projects Private Limited - sufficient cause to condone the delay in filing the appeal beyond the statutory limitation period prescribed under Section 421 of the Companies Act, 2013 - HELD THAT:- The appellant at two places in para 5 of the IA No. 1324 of 2024 and in list of dates at page 6 and 7 of the appeal paper book has admitted that the copy of the impugned order was communicated to him by the official liquidator on 02.11.2023. If the limitation is counted from the date of the order, more than 200 days have elapsed. Even accepting the best case of the appellant that he had come to know of the impugned order on 02.11.2023, it is found that the appeal has been e-filed on 08.02.2024, which is beyond the period of 90 days. It is noted that in the list of dates, the date of appeal is given as 05.02.2024. The date given in the memo of parties at page 2 of the appeal paper book is 02.02.2024. As per the Registry, the appeal was e-filed on 08.02.2024. The claim of the Learned Counsel for the Appellant that the appeal was filed on 30.01.2024 is not borne out from the records and is not correct.
According to the provisions of Section 421 of the Companies Act, 2013, the limitation for filing of appeal is 45 days which can be extended by a further period not exceeding 45 days, if the Tribunal is satisfied that the appellant was prevented by sufficient cause from filing the appeal within time - Even if the contentions of the appellant are accepted that the impugned order was received by him on 02.11.2023, it is found that there is delay beyond condonable period in filing the present appeal. If the period from 02.11.2023 to 08.02.2024 is counted, it comes to delay of 54 days, beyond the statutory limitation of 45 days.
Conclusion - On seeing the provisions of Section 421 empower this Tribunal to condone the maximum delay of 45 days in filing the appeal, beyond the period of 45 days initially allowed. It is also found that no sufficient cause has been given by the appellant in its IA for condonation of delay. Even otherwise, the period of delay is 54 days, which is beyond the powers of condonation of this Tribunal.
Appeal dismissed.
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2025 (6) TMI 201
Challenge to modification of the 'Appointed Date' in the Impugned Order by the Ld. NCLT without providing any reasons or opportunity to the Appellant and without any objections raised by any authority - violation of principles of natural justice - HELD THAT:- Admittedly the Scheme shall come into operation only upon completion of the conditions given under Clause 35.1, of which conditions under (d) and (f) are yet to be completed. The impugned order though allowed the Scheme but changed the appointed date as to the date of passing of the impugned order - The appellant is aggrieved of the fact while the Ld. NCLT granted permission to the scheme of amalgamation as proposed by the petitioner company and held the scheme of amalgamation shall be binding by the petitioner company its shareholders and creditors yet changed the appointed date in para 14(i) of the impugned order whereas it had no authority to do so.
On perusal of Clauses of the Scheme, more specifically, its Clauses 1.1.2 viz Appointed date; 1.1.3 viz the Effective Date it means the last of the dates on which all the conditions and matters referred to in Clause 35.1 of the Scheme have occurred or have been fulfilled or waived in accordance with this Scheme and that as submitted Clause 35.1 (d) and (f) shall soon be fulfilled and thus any change of the appointed date of amalgamation at this stage would certainly affect calculations made by the companies and would have serious financial implications. Thus the appeal is allowed holding the appointed date shall be date as fixed by the Scheme per Clause 1.1.2 and 1.1.3 read with Clause 35.1 above and it shall not be “from the date of the impugned order” as is mentioned in para 14 of the impugned order by the Ld. NCLT. The impugned order to such an extent is modified.
Conclusion - i) The appointed date shall be the date as fixed by the Scheme per Clause 1.1.2 and 1.1.3 read with Clause 35.1 above and it shall not be 'from the date of the impugned order' as is mentioned in para 14 of the impugned order by the Ld. NCLT. ii) Modification of the 'Appointed Date' without justification or opportunity to the parties, especially when it affects financial and legal outcomes, is impermissible.
The appeal is disposed off.
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2025 (6) TMI 32
Seeking review of the previous order - error apparent on the face of record - Section 114 read with Order XLVII Rule 1 and Section 151 of the Code of Civil Procedure, 1908 - HELD THAT:- It is a matter of record that the IRP was appointed in terms of the directions of the National Company Law Tribunal vide order dated 14.12.2022, and further vide order dated 26.05.2023 it was directed to verify the claims of the secured and unsecured creditors of the respondent no. 3/Three C Shelters Pvt. Ltd. The impugned report dated 09.08.2023 by the IRP has been the subject of consideration in various proceedings leading up to the Supreme Court, this Court as well as the NCLT.
However, the issue as to whether or not any actions or inactions on the part of the IRP are within or outside the scope of Section 45 and other relevant provisions of the IBC; and additionally, whether or not the findings recorded therein are substantiated or corroborated in any manner, are matters that clearly lie in the domain of the NCLT. The NCLT is already seized of the matter pursuant to the direction of the Supreme Court dated 19.11.2024, whereby the corporate insolvency proceedings in respect of the respondent no. 3/Three C Shelters Private Ltd. has been revived.
Likewise, although the impugned report is one of the factors that triggered the inquiry/investigation by respondent No. 1 & 2 against the companies mentioned vide paragraph (75) (vii), but such report is not a conclusive piece of evidence as such. The findings contained in the report are supposed to be independently examined and relevant material should be unearthed to substantiate the role of the concerned companies and nexus, if any, in the alleged financial malpractices.
Conclusion - The review petition is dismissed for failure to disclose any error apparent on the face of the record.
The instant application for review does not disclose any error apparent on the face of the record. Hence, the present review petition is dismissed.
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2025 (6) TMI 31
Seeking restoration of the name of the Appellant company in the register of Registrar of Companies - Section 252(1) read with Section 252(3) of the Companies Act, 2013 - HELD THAT:- The Learned Counsel for the Appellant though has shown two orders dated 08.12.2023 and 08.04.2024 which records the reply was filed by the Appellants herein and rather a date was given to the Income Tax Department to file its rejoinder, but admittedly the presence of the Appellant’s Counsel was not recorded in both these orders. In any case, the reply filed by the Respondents No. 2 to 4 before the Ld. NCLT to the appeal filed by the department also perused, wherein they had not denied assessment order and demand notice but claimed it being beyond limitation.
Where the appellants failed to appear and did not dispute raising of such alleged demand, there are no reason why impugned order be set aside.
Appeal dismissed.
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2025 (5) TMI 2107
Oppression and Mismanagement - "decree" as defined under the Code of Civil Procedure (CPC), 1908 - recovery of funds allegedly diverted from the company - HELD THAT:- The decree in itself is not a Judgment, but rather, it is a formal expression of an adjudication which based on reasons given in a Judgment, made by the “Civil Courts”, conclusively determining the rights and liabilities of the parties in the matters which are in controversy “in the Suit”, and can be in the nature of preliminary, final or part preliminary and part final.
Even if the orders passed by this Tribunal or the Appellate Tribunal are made enforceable as per Sub-Section (3) of Section 424 like a “Decree” passed by the Civil Court, this mechanism of its enforceability in itself will not make the said Order as to be a decree, which has been passed by the competent Civil Court in a Suit, because, the enforceability of the Order of a Tribunal as a decree as contemplated under the Companies Act, it does not include within itself a mechanism of enforceability unlike a decree passed in the Civil Suit which has a mechanism of enforceability under the provisions contained under Order XXI of C.P.C.
The learned Adjudicating Authority has observed that, though Sub-Section (3) of Section 424, contemplates for an Order passed by the Tribunals created under the Companies Act to be executed as a decree of a Civil Court, that in itself will not mean that the orders passed by the Tribunal or Appellate Tribunal, will in itself take a shape of the decree, which could be permitted to be formulated, as it was prayed for in the respective Applications preferred under Rule 11 to be read with Rule 102 of the NCLT Rules, 2016, to be read in conjunction with the provisions of Order XX Rule 6A & Section 47 of the C.P.C., and accordingly has taken the view that merely because of the provisions contained under Sub-Section (3) of Section 424, it does not cast a judicial liability on the Tribunal to formulate a decree, in the shape of a decree contemplated under the Civil laws, provided under Order XX of C.P.C.
The learned NCLT has observed that the authorization given to the Administrator by the Order of 28.08.2018, to take all steps to recover the amount, will not amount to a judicial power vested with the Administrator and that it is only an arrangement made by the Tribunal to evolve a mechanism for recovery of the amount said to be diversified which was the subject matter before it and therefore, any determination made by the Administrator in this regard, for all practical purposes cannot be treated as to be a determination made by a Civil Court, on basis of which a decree could be formulated under an Order XX Rule 6A of the C.P.C., to be treated as a decree to be executed as per Order XXI of C.P.C. or under Section 424(3) of the Companies Act - The Tribunal has rightly observed that the prayer for drawing of a decree on the basis of the report of the Administrator itself is a concept which is alien to the Civil proceedings leading to formulation of a decree.
As a matter of fact, Courts created under the Statute, have an inherent power vested in them to modulate the relief so as to meet the ends of justice and a rigid straight jacketed formula is not to be adopted and applied in a manner to deceive the very purpose of an earlier adjudication of the controversy between the parties, owing to the hyper technical view that since prayer was for formulation of decree, which falls outside the ambit of powers vested with the Tribunal, the applications are liable to be dismissed.
The relief as sought for by the Appellant in the Application preferred before the learned Tribunal in compliance of the Order dated 08.04.2022, is reasonably modified to be read as “to pass an Order”, which is executable under Sub-Section (3) of Section 424 of the Companies Act and accordingly, the order passed in favour of the Appellant under Section 241 & 242 of the Companies Act, is directed to be executed as per the provisions contained under Sub-Section (3) of Section 424 of the Companies Act.
Conclusion - i) The applications seeking drawing of decrees were not maintainable and rightly dismissed by the learned Adjudicating Authority. ii) The orders passed by the Tribunal are enforceable as if decrees but are not decrees under the CPC and cannot be formally drawn as such.
Appeal disposed off.
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2025 (5) TMI 2009
Seeking review of judgement - request for corrections of some minor typographical errors - existence of justifiable grounds for declaring, classifying, or categorizing the petitioner as ‘fraud’ merely on account of non-payment of institutional loans - HELD THAT:- There are indeed certain typographical errors which are quite apparent on the face of the record. In paragraph (11), it is inadvertently recorded that the petitioner in Ratan Puri v. Bank of Baroda passed by the Review Committee.
There is an inadvertent omission to the effect that the aforesaid writ petition was decided vide judgment dated 01.03.2024 in favour of the petitioner and categorization of the petitioner as ‘wilful defaulter’ was struck down/quashed for the same being not only in derogation to the Master Circular of the RBI but also falling foul of decision in the case of State Bank of India v. Rajesh Aggarwal [2023 (3) TMI 1205 - SUPREME COURT]. It appears that inadvertently the judgment of Supreme Court Supreme Court in the case SBI v. Jah Developers (P) Ltd. [2019 (5) TMI 862 - SUPREME COURT], was not quoted, which was in fact cited with affirmation in the case of State Bank of India v. Rajesh Aggarwal.
The aforesaid two mistakes are corrected and this order may be read as an addendum of the earlier Judgment dated 25.10.2024, which is sought to be reviewed.
It is necessary to note that the learned counsel for the applicant/petitioner took this Court through the company’s balance sheets for the financial years 2006–07 to 2011–12. These documents evidently demonstrate significant cash accruals in the form of credit bank balances and accounts receivable, which facilitated all transactions with related as well as third parties, including investments, sales, services, and lease rentals. Notably, the value of these accruals was substantially higher than the cumulative value of the transactions. Upon perusal of the balance sheets, this Court is of the view that the respondent Bank’s plea, that the company utilized borrowed funds for these transactions and thereby diverted borrowed funds, lacks merit and fails on the face of the record.
The proposition of law that emerges is that once the aforementioned grounds, which clearly emanated from the Forensic Audit Report of M/s Hari Bhakti & Company LLP, were found to be insufficient or unsustainable on merits for declaring the petitioner's account as 'wilful defaulter', the same grounds cannot be re-agitated to lay the foundation for declaring the petitioner's account as 'fraud' in terms of Circulars 8.9.4 and 8.95 in the absence of additional independent material. No such additional independent material has been evidently pleaded and produced in the instant matter. The declaration of the account of a person or entity as “fraud” requires a greater degree of criminality. The bottom line is that once the very substratum of the imputations is held to be unsustainable for lesser civil consequences such as being labelled a 'wilful defaulter' under the RBI Master Guidelines, the same grounds or imputations cannot form the foundation for declaring a person's or entity's account as 'fraud', which requires a greater degree of proof to be established.
Conclusion - i) The petitioner's classification as 'fraud' by the respondent Bank is quashed and set aside. ii) The grounds relied upon by the respondent Bank, which were earlier found unsustainable for wilful defaulter classification, cannot sustain a fraud classification in the absence of additional independent material.
The earlier judgment is hereby reviewed, and thus, apart from correcting the typographical mistakes as indicated in paragraph (17) above, the discussion on merits of the purported impugned action by the respondent Bank in declaration the account of the petitioner as ‘fraud’ vide Show Cause Notice dated 20.06.2019 is hereby held to be arbitrary, unfair, illegal and untenable in law - Petition disposed off.
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2025 (5) TMI 2008
Sanction of scheme of amalgamation - Sections 230 to 232 of the Companies Act. 2013 read with Rule 3 of the Companies (Compromises, Arrangements, and Amalgamations) Rules, 2016 - HELD THAT:- The appellant has requested that he may be allowed to withdraw this appeal and may be permitted to file an application before the Ld. Tribunal for recalling of the impugned order on the basis of the order passed in CA (AT) (Ins) No. 2282 of 2024 because the impugned order has been held to be per incuriam. Permission is granted.
Appeal disposed off.
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2025 (5) TMI 2007
Oppression and mismanagement - doctrine of legitimate expectation - appellant No.1's directorship ceased by operation of law - failure to share any information and financials of the Company - AGM not held in the year ending 31.03.2021 till date nor have sought any extension in this regard - HELD THAT:- There are no illegality in the impugned order so far as it relates to the removal of the appellant No.1 as an Additional Director. Secondly it is also opined that shareholder cannot seek relief of his appointment as a director on a doctrine of legitimate expectation.
Further it is settled law that complaints of termination of directorship cannot be entertained in an Oppression and Mismanagement petition as has been held in Tata Consultancy Services Ltd Vs Cyrus Investment Pvt Ltd [2021 (3) TMI 1181 - SUPREME COURT] wherein the court held 'In fact the real reason why the complainant companies thought fit, quite tactfully, not to press for the reinstatement of CPM is that the mere termination of Directorship cannot be projected as something that would trigger the just and equitable clause for winding up or to grant relief under Sections 241 and 242.'
Conclusion - The appellants' claims of oppression and mismanagement were not substantiated; the appellant No.1's directorship ceased by operation of law on 10.08.2020; procedural irregularities did not amount to oppression; and termination of directorship alone is not a ground for relief under the Companies Act.
There is no force in the appeal and accordingly the appeal is dismissed.
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