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Companies Law - Case Laws
Showing 301 to 320 of 14683 Records
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2023 (2) TMI 188 - BOMBAY HIGH COURT
Liquidation proceedings - Right of secured creditors - Legality of declaration that the action of Union Bank of India, the respondent No. 3, of taking possession of the assets of the company in liquidation including the plant and machinery situated at Aurangabad and sale of the said assets without the order of this Court - HELD THAT:- A conjoint reading of the provisions contained in Sections 529 and 529A, would indicate that the secured creditor has an option to realise or relinquish his security. If the secured creditor exercises the option to realise his security, he is entitled to do so in a proceeding other than the winding up proceeding. But he has to pay to the liquidator the costs of preservation of the security till he realises the security. The workmen of the company in winding up also acquire the status of secured creditor. Where a company is in liquidation, a statutory charge is created in favour of workmen in respect of dues over the security of every secured creditor and this charge is pari passu with that of the secured creditor. Such statutory charge is to the extent of workmen’s portion in relation to the security held by the secured creditors of the company as illustrated by Section 529 of the Act.
In the light of the provisions contained in RDB Act, which has an overriding effect, two propositions emerge. First, RDB Act confers exclusive jurisdiction upon DRT for determination of the matters specified in Section 17. Second, the Act ousts jurisdiction of all other Courts in determining and deciding the issues which are within the province of the Authorities under RDB Act, save and except the powers of the Supreme Court and High Court under Articles 226 and 227 of the Constitution.
Both the submissions on behalf of the applicant that the Official Liquidator ought to have taken physical possession of the subject assets, despite the secured creditor having initiated steps to enforce the security interest therein, and before sale respondent No. 3 must have obtained the permission of the Company Court, fell through.
Application dismissed.
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2023 (2) TMI 187 - MADRAS HIGH COURT
Recovery of debt under NCD issued - Maintainability of plaint - rejection of plaint on the ground that the plaint does not disclose a cause of action and on the ground that the suit appears from the statements in the plaint to be barred by law - whether an application seeking interim relief in the form of interim injunction or provision of security is maintainable in the context of a suit for damages? - HELD THAT:- Both the CRAs did not provide details of the progressively weakening liquidity of DHFL in their reviews. More importantly, they did not take reasonable notice or give reasonable weight to the same and downgrade the ratings on such basis. Instead, they waited until DHFL's collapse became imminent before downgrading the ratings. By so doing, a strong prima facie inference may be drawn that they failed to fulfil their statutory and common law obligation to monitor and review the ratings so as to provide a true and accurate rating. For such reason, they are prima facie liable. Therefore, the CRAs cannot be absolved from liability.
The three firms of auditors (the eight to tenth defendants) endeavoured to absolve themselves of responsibility on the ground that they were not responsible for the financial statements, which were referred to and relied on in the prospectus. While the eighth defendant contended that the financial statements for the financial years 2011-2012 to 2015-2016 were relied upon in the prospectus and that the eighth defendant did not carry out audit during the said period, the ninth defendant contended that the prospectus was issued in the financial year 2016-2017 after the said defendant had resigned. However, the question arises as to whether they owe a duty of care to the plaintiff.
63 Moons became a debenture holder upon subscribing to the debentures floated under the prospectus. In the case of shareholders, whose interest is ordinarily aligned with that of the company, an argument that the company should espouse the cause may be required to be dealt with by a complaining shareholder. As regards debenture holders, the argument that the debenture trustee and not an individual debenture holder should espouse the cause could ordinarily be made. But, here, the plaintiff alleges with prima facie a fair measure of justification that the Debenture Trustee failed to fulfil obligations to debenture holders, including 63 Moons. Therefore, such objection is untenable.
The manner in which DHFL collapsed over the period when the eighth defendant played a critical role as statutory auditor leads to the strong prima facie conclusion that they failed to fulfil their statutory obligations, thereby causing immense losses to investors such as the plaintiff. Therefore, they cannot be absolved from responsibility and liability.
All the defendants who were represented by counsel contended with great vigour that this is an action for unliquidated damages and, therefore, the interim order in force should be discharged and that the defendants should not be called upon to provide security - liability to provide security for the suit claim cannot be apportioned with any degree of accuracy. Nonetheless, by taking into account the role played by the respective defendant, the obligation to provide security is apportioned for interlocutory purposes.
All the applications to reject or return the plaint are dismissed - All the applications to delete a party from the array of parties are dismissed - All the applications for injunction, to vacate the injunction and to provide security are disposed of.
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2023 (2) TMI 142 - CALCUTTA HIGH COURT
Validity of request for issuance of a Look Out Circular (in short LOC) made by the respondent No.2 - en-mass cancellation of coal block allocations - account declared as a Non-Performing Asset (NPA) by the lenders - HELD THAT:- The general objective for issuance of LOC is to control the arrival/departure of persons against whom criminal cases are pending or who are either avoiding judicial proceedings or evading arrest or not co14 operating with the investigating agencies and there are specific inputs that such person(s), would flee the country - The first comprehensive policy was framed and found its release in the office memorandum dated October 27, 2010. The authorities who could issue LOC, the ingredients necessary for issuance of LOCs, the agencies who could make a request for issuance of LOCs and the various parameters required to be fulfilled before such request could be made, was provided therein.
BOB requested the Bureau of Immigration to issue LOC. It is not on record whether such LOC has been issued or not. The Bureau of Immigration, Ministry of Home Affairs (Foreigners Division) and all the other members of the consortium of banks, apart from PNB were impleaded as respondents in this proceeding. None of these respondents have come up before the Court in support of the request of BOB - There is no evidence that on account of the default committed by the Visa Power Limited, the economy of India had been shaken. The bank has not provided any contemporaneous material against the petitioner which would satisfy the exceptions clause. The bank is also silent as to whether any input had been received from any agency that the petitioner was likely to flee the country and his departure would disrupt the economy.
Admittedly, in the facts of this case, no investigation is pending before any authority. It is also not a case where the bank had come to a conclusion on the basis of inputs received from an intelligence agency or any other agency that the petitioner was trying to leave India in order to evade the consequences of the legal actions that may be taken against him, both under the civil and the criminal laws.
In the case of SRI SOUMEN SARKAR, SON OF SRI GOPAL CHANDRA SARKAR, VERSUS , THE STATE OF TRIPURA, THE DIRECTOR GENERAL OF POLICE, , THE SUPERINTENDENT OF POLICE, , THE UNION OF INDIA,, THE COMMISSIONER (IMMIGRATION) , 6. THE REGIONAL PASSPORT OFFICER [2021 (3) TMI 1405 - TRIPURA HIGH COURT], the High Court of Tripura on perusal of MHA's Office memorandum dated 31.08.2010, stated that the reasons for opening LOC must be given categorically. It was held that LOCs could not be issued as a matter of course, but only when reasons existed and the accused deliberately evaded arrest or did not appear in the trial court.
The Delhi High Court in the case of Vikas Chaudhary V. Union of India, [2022 (1) TMI 553 - DELHI HIGH COURT] quashed the LOC inter alia stating that mere suspicion of opening bank accounts in a foreign country, when such suspicion was based on some unsigned agreements and WhatsApp chats could not be a ground to restrain someone's fundamental right to travel abroad.
In the case of Brij Bhushan Kathuria vs. Union of India &Ors., [2021 (4) TMI 750 - DELHI HIGH COURT] the Delhi High Court while setting aside the LOC issued against the Petitioner held that the phrases such as 'economic interest' or 'larger public interest' could not be expanded in a manner so as to restrict an independent director who was in the past associated with the company being investigated, from travelling abroad, without any specific role being attributed to him.
The personal liberty and the fundamental right of movement guaranteed by the Constitution cannot be curtailed at the behest of BOB when the conditions precedent for making such request for opening an LOC, did not exist in this case - The freedom of movement of a citizen of India is a valuable right and cannot be infringed except by imposing reasonable restrictions. The court does not find any reasonableness in the action of BOB. The lead bank, PNB failed in its attempt to restrict the movement of the petitioner. No subsequent development has taken place which would justify a further request by BOB, on the self-same set of facts.
Once the action of the lead bank was set aside by this court, BOB took a chance to restrain the freedom of movement of the petitioner by placing reliance upon the liquidation proceedings, the Forensic Audit Report and the complaint lodged by PNB. Such complaint was returned by the CBI - There is no allegation that the activity of the petitioner led to upheavals in the stock market, business activities, investments, trade, growth and development etc. There is no evidence that the petitioner had tried to escape to a foreign jurisdiction to avoid legal consequences of such action. The proceedings before NCLT were initiated in 2016. Since then no evidence could be submitted to implicate the petitioner in any criminal case. The petitioner contested the liquidation proceedings.
A bald assertion that the petitioner’s departure would be detrimental to the economic interest of the country and the LOC must be issued in larger public interest, cannot be due satisfaction of the existing preconditions required to be fulfilled before the originator can make such a request. The existence of such pre-conditions and the manner in which the action of the petitioner fell within the exceptions or had affected the country’s economic interest had to be demonstrated from the records. The apprehension should be well-founded, backed by reasons and also supported by evidence - The bank acted in arbitrary exercise of the power vested in it by making a request for opening LOC which was an attempt to curtail the personal liberty and fundamental right of movement of a citizen guaranteed by the Constitution of India.
Petition allowed.
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2023 (1) TMI 1289 - ALLAHABAD HIGH COURT
Change in the share holding of the allottee company - liability to pay Change in the Share Holding Charges (CIS charges) as per the policy of Greater NOIDA dated 13.7.2021 - HELD THAT:- In view of the categorical stand of the petitioner in the writ petition which could not be successfully refuted by the respondent Greater NOIDA we are required to take note of Clause 3.4 of the transfer policy of Greater NOIDA, issued by the office order dated 13.7.2021 - In view of the provision in Clause 3.4 of the policy, no CIC charges can be demanded from the petitioner company in view of the established stand of the petitioner that it was merely a change in the name of the original allottee/leasee company and there is no change in the ownership or share holding of the allottee company.
The demand notice dated 14.06.2021 is found illegal, contrary to the own policy of the Greater NOIDA promulgated by the office order dated 13.7.2021.
As there is no justification for demand of CIC charges, while quashing the demand notice, the writ petition is allowed.
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2023 (1) TMI 1193 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
Winding up petition - Sections 271 and 272 of the Companies Act, 2013 - HELD THAT:- The facts of the instant Appeal are same and identical to the case which was dismissed by this Appellate Tribunal in REGISTRAR OF COMPANIES NCT DELHI AND HARYANA VERSUS APOORVA LEASING FINANCE & INVESTMENT CO LTD, UNION OF INDIA, THROUGH THE SECRETARY, MINISTRY OF CORPORATE AFFAIRS, NEW DELHI. [2019 (12) TMI 1634 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI], where it was held that It is apparent that without giving reasonable opportunity of representation to Respondent No.1 the sanction has been granted that too without applying the mind thus we find no ground to interfere in the order passed by the NCLT.
Therefore, there is no merit in the Appeal, the instant Appeal is hereby dismissed.
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2023 (1) TMI 1192 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
Winding up petition under Section 271-272 of Companies Act, 2013 - reasonable opportunity of making representation - Whether the Central Government has accorded the sanction as per law? - HELD THAT:- The facts of the instant Appeal are same and identical to the case which was dismissed by this Appellate Tribunal in REGISTRAR OF COMPANIES NCT DELHI AND HARYANA VERSUS APOORVA LEASING FINANCE & INVESTMENT CO LTD, UNION OF INDIA, THROUGH THE SECRETARY, MINISTRY OF CORPORATE AFFAIRS, NEW DELHI. [2019 (12) TMI 1634 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI], where it was held that It is apparent that without giving reasonable opportunity of representation to Respondent No.1 the sanction has been granted that too without applying the mind thus we find no ground to interfere in the order passed by the NCLT.
Therefore, there is no merit in the Appeal, the instant Appeal is hereby dismissed.
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2023 (1) TMI 1177 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
Legality of the impugned order passed by the National Company Law Tribunal, New Delhi Bench whereby the winding up petition filed against the Respondent company was dismissed - HELD THAT:- In view of the Judgment passed by Hon’ble three Member Bench of this Tribunal in the case of REGISTRAR OF COMPANIES NCT DELHI AND HARYANA VERSUS APOORVA LEASING FINANCE & INVESTMENT CO LTD, UNION OF INDIA, THROUGH THE SECRETARY, MINISTRY OF CORPORATE AFFAIRS, NEW DELHI. [2019 (12) TMI 1634 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI.] which has attained finality as the Civil Appeal has also been dismissed by the Hon’ble Supreme Court in UNION OF INDIA VERSUS APOORVA LEASING FINANCE AND INVESTMENT CO LTD AND ANOTHER [2021 (1) TMI 1293 - SC ORDER], it is found that facts of the instant Appeal are same and identical to the case which was dismissed by this Appellate Tribunal in the case of Registrar of Companies Vs. Apoorva Leasing Finance & Investment Company Limited and Another - It was held in the said case that Under the provisions of Section 423, this Court is empowered to condone a delay (beyond the original period of limitation of 60 days) only to the extent of a further period of 60 days. Hence, since the appeal has been filed beyond the maximum period that can be condoned under the proviso to Section 423, the appeal cannot be entertained and is accordingly dismissed on the ground of limitation.
There is no merit in the Appeal, the instant Appeal is hereby dismissed.
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2023 (1) TMI 1055 - DELHI HIGH COURT
Seeking cancellation/ rectification of the name of Respondent No.3 - seeking cancellation on the ground that it resembles the name of its company and its business - Validity of incorporation of the Respondent No.3 under the name ‘Purecure Pvt. Ltd.’ which was incorporated on 11th April, 2020 - HELD THAT:- A perusal of Section 4(2)(a) as also Section 16 of the Companies Act, 2013 makes it clear that the name of a company which too nearly resembles an earlier existing name cannot be allotted to a company.
The purpose of these two provisions is to ensure that companies do not register names which are identical or similar to earlier registered corporate names or registered trademarks so as to avoid any confusion in the market place between similarly sounding or identical businesses. The perusal of the two names, in the present case, "Pure Cure Ayurveda Private Limited" and "Purecure Private Limited" leaves no doubt in the mind of the Court that they are resembling each other and there is likelihood of confusion between the two businesses. The Petitioner’s company is registered prior in point of time than the Respondent no.3.
The Respondent no.3 is willing to cancel and give up the objectionable name. In view of the stand of Respondent No.3, the writ petition is disposed of directing the ROC to remove/modify the Register of Companies by removing the name of Respondent No.3 from the said register and rectifying the name of the company of Respondent No.3. For the said purpose, if any forms are to be filed, the same shall be filed by Respondent No.3 within three weeks.
Petition disposed off.
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2023 (1) TMI 947 - DELHI HIGH COURT
Quantification of time limitation in terms of section 468 of Cr.P.C - Prayer to seek CLB's directions to investigate into the affairs of the respondent companies under Section 237(b) of the Companies Act, 1956 - likelihood of the existence of malpractices envisaged in clauses (i) to (iii) of Section 237(b) of the Companies Act - Whether the period commencing from 26.11.2007 to 03.06.2008 i.e. the date on which the SFIO submitted its report to MCA and the date on which MCA convyed SFIO to file a complaint respectively, is to be excluded for the purposes of counting limitation in terms of Section 468 of the Cr.P.C.?
HELD THAT:- Section 242 of the Companies Act prescribes that if from any report made under Section 241, it appears to the Central Government that any person has, in relation to the company or in relation to any other body corporate, whose affairs have been investigated by virtue of Section 239, being guilty of any offence for which he is criminally liable, the Central Government may, after taking such legal advice as it thinks fit, would prosecute such person for the offence and it shall be the duty of all officers and other employees and agents of the company, or body corporate, other than the accused in the proceedings, to give the Central Government all assistance in connection with the prosecution which they are reasonably able to give.
It is thus, seen that the Central Government is well within its power to prosecute such person for the offence in relation to the company or in relation to any other body corporate whose affairs have been investigated by virtue of Section 239. There is no hurdle for the Central Government to prosecute such person if it appears to the Central Government that such person is guilty for any offence for which he is criminally liable. It is the discretion of the Central Government to take legal advice as it thinks fit.
As per mandate of Section 242 of the Companies Act, the application of mind on the said report and if necessary the legal opinion etc. was required to be completed, so as to ensure that within a period of six months the complaint is presented by authorized person on behalf of the Central Government before the competent court. The Central Government took around six months in taking decision dated 03.06.2008 to authorize SFIO to file the complaint. Firstly, since there was already a valid notification in favour of the officers to file a complaint on behalf of SFIO, there was no necessity to again authorize SFIO to file the complaint - Since the Central Government itself had taken about six months time to take a decision and then the SFIO took time to prepare the complaint to present it in the court, that cannot be a reason to exclude the period between 26.11.2007 to 03.06.2008. The SFIO who is only an authorized person can not claim exclusion of limitation, when it has no separate identity to file the complaint.
It is therefore, in the considered opinion of this court that the period between 26.11.2007 to 03.06.2008 cannot be excluded for the purpose of counting limitation for filing of the complaint. Any other interpretation would result in adding words in the legislation, which is not permissible in the interpretative process of the provisions.
A perusal of the application for condonation of delay does not explain any reason or steps taken by the Central Government between 26.11.2007 to 03.06.2008. The only reason for condonation of delay sought for is to exclude the period between 26.11.2007 to 03.06.2008, as without any sanction or consent the SFIO could not have filed the said complaint. Since this court has already held that no "previous consent" or "sanction" was necessitated in terms of Section 242 read with Section 621 of the Companies Act, therefore, the said period cannot be excluded, and even the period of limitation cannot be extended in the instant case.
Application dismissed.
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2023 (1) TMI 883 - CALCUTTA HIGH COURT
Validity of prosecution against the petitioner/director - post held by the petitioner on the date of filing the report - Non-furnishing of furnish fullest information and explanation by the Board of Directors in their Director’s report with respect to the Auditors in their report on Balance Sheet for the year ending on 31st March, 2014 - rejection of prayer of the petitioner for discharge, inter alia, on the ground that the proceedings being Summons triable he is not empowered to direct discharge of the accused persons.
What post was being held by the petitioner on the date of filing the report? - main contention of the petitioner is that he was not attached to the company in the financial year 2013-2014 and as such he is not liable in any manner what so ever - HELD THAT:- An Additional Director is a director having the same powers, responsibilities and duties as other directors. The only difference between them is regards to their appointing authority and their term of office - Though appointed on a temporary basis, an additional director is vested with the same powers of a director. Moreover, they are subject to all obligations and limitations of a director. They are also entitled to seek appointment as a permanent director at the Annual General Meeting. The additional director must utilize his/her powers in the best interest of the company and the shareholders.
Many people claim that the ROC knows about this director, as the company had already filed DIR 12 at the time of his appointment as additional director. So, following regularization DIR 12 is not required to be filed, which is absolutely a wrong understanding. Since he is now a director, and not an additional director. Therefore, ROC must be informed by filing a new DIR 12 that the additional director has been regularized as a director in the Company - additional directors are on equal footing, in terms of, of power, rights, duties, and responsibilities, as other directors are. Yet, tenure of additional director is up to the date of forthcoming AGM unlike directors which are duly appointed by shareholders in the general meeting. If the company wishes to continue with an additional director beyond the AGM, then it will have to go for his/her regularization.
Whether the petitioner is responsible/liable for the offence alleged? - HELD THAT:- In the present case the petitioner as seen from the documents was an Additional Director on the date the board report was filed. To counter the same evidence is required to be adduced during trial so also to decide as to whether the petitioner at the relevant time of filing the report was a Director, Additional Director or an Independent Director. The responsibility of an Additional Director being the same as that of a director (but different from an independent director) they remain responsible, as the statute provides for the same - Thus to quash the proceedings by exercising this Courts inherent powers would amount to an abuse of the process of Court and would also amount to serious miscarriage of justice.
Application dismissed.
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2023 (1) TMI 748 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , CHENNAI
Seeking sanction of scheme - seeking a direction to dispense a Meeting of the Secured Creditors of the Appellant and for directions to convene the Meetings of the Equity Shareholders, Preference Shareholders and Unsecured Creditors of the Appellant, for the purpose of consideration of the Scheme - Section 421 of the Companies Act, 2013 - HELD THAT:- This Tribunal do not find any irregularity or infirmity, in the directions passed by the Tribunal (National Company Law Tribunal). The Regional Director, is a Public Authority, looking after the interest of the Public/Shareholders/Investor at large, and if there are any observations, made by the Regional Director that there were irregularities and non-compliances that were present, it is imperative that the Company must comply with the provisions of Law, and not to violate, any Public Policy, failing which, the National Company Law Tribunal, is empowered to reject the Petition, seeking approval of the Scheme.
Before the sanctioning of the Scheme, under Section 230 of the Companies Act, no action ought to be pending against the Company, by any Public Authority. The contention of the Learned Counsel for the Appellant that I.A. 2 / 2021, seeking change of date was kept pending, has also been addressed to by the Tribunal, in the impugned order and the same has not been approved or dealt with on account of the multiple objections, raised by the Regional Director and the Official Liquidator, which were not been complied with, to the subjective satisfaction of the respective Statutory Authorities.
This Tribunal, does not find any ground(s), to interfere with the well-reasoned Order of the Tribunal (NCLT), especially, keeping in view that a Liberty was indeed granted to the Appellants herein, to file a Petition afresh rectifying the irregularities, pointed by the concerned Authorities - Appeal dismissed.
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2023 (1) TMI 692 - DELHI HIGH COURT
Filing of form AOC-4 which was required to be filed within 30 days of the Annual General Meeting (AGM) as per Section 137 of the Companies Act, 2013 read with Rule 12 of the Company (Accounts) Rules, 2014 - it is prayed by the Petitioner that an extension be given to the Petitioner for uploading the said documents without any additional fee of penalty - HELD THAT:- The overdue e-forms were allowed to be deposited by 31st March, 2021 without additional payments.
After perusing the said documents, it appears that the Petitioner was not ready to upload these documents either on 31st December, 2020 or even within the extended period of 31st March, 2021 - this Court does not see any merit in the prayer of the Petitioner for permitting to file the form AOC-4 or Form MGT-7 in respect of its AGM dated 28th September, 2019 without additional fee and penalty.
The present writ petition is without any merit and is, accordingly, dismissed.
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2023 (1) TMI 643 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , CHENNAI
Rejection of scheme of arrangement - It is the forceful submission of the Appellants that, just because, there is an allegation of commission of an offence, against the provisions of the Companies Act, 2013, the Scheme of Arrangement, is not to be rejected - It is the version of the Respondent that the Companies are retaining the amount collected already from the Shareholders, before the Companies Act, 2013.
HELD THAT:- Section 2 (31) of the Companies Act, 2013, defines deposit including any receipt of money by way of deposit or loan or in any other form by a company, but does not include such categories of amount as may be prescribed in consultation with the Reserve Bank of India - As a matter of fact, only those deposits, loans or money receipts, which are repayable, and which are not in the category of exempted Deposits, will be treated as Deposits. Also that, Rule 2 (1) (c) of the Companies (Acceptance of Deposits), Rules, 2014, defines, Deposits, in an inclusive fashion.
If a Company, had Defaulted in the repayment of the Fixed Deposit, which was already Matured, despite the fact that the Company was making Profits, it was obligated on the Company’s part, that it should make arrangements in such a way that there could be no problem in the Repayment of Deposits.
Payment of Penal Interest - HELD THAT:- Rule 17 of the Companies (Acceptance of Deposits) Rules, 2014, provides that a Company, shall be liable to Pay, Penal Interest at 18% per annum to a Depositor, if there is any failure to repay the Deposits - In fact, the Penal Interest, is payable, when payment was overdue, ofcourse, after Maturity of Deposit.
Damages for Fraud - HELD THAT:- Section 75 of the Companies Act, 2013, relates to Damages for Fraud, due to failure to repay the Deposits, accepted by a Company. Further, the definition of Fraud, under Section 447 of the Companies Act, 2013, is an inclusive one and it concerns the Affairs of a Company or a Body Corporate.
Disqualification for Appointment of Director - HELD THAT:- Section 164 of the Companies Act, 2013, pertains to the Disqualification of Directors, incurred during the Terms of Office, as Directors, and not with the Retirement of a Director.
Compromises, Arrangements and Amalgamations, under the Companies Act, 2013 - HELD THAT:- Section 230 of the Companies Act, 2013, deals with Power to Compromise or make Arrangements with the Creditors and the Members, and the said Section is wide enough to include any reasonable Compromise or Arrangement. The word Arrangement, has wider meaning, than the term Compromise - If the Scheme, is unjust, unfair, unconscionable or an illegal one, the Court (now Tribunal), is justified in declining to Sanction the Scheme, in the considered opinion of this Tribunal. No wonder, a Tribunal / a Court of Law, is to bear in mind that the fairness and viability of the Scheme, qua the right of minority shareholders, before according an Approval.
Assessment - HELD THAT:- The Tribunal, is to see that the Scheme is not a camouflage, for a purpose, other than ostensible reason(s). Also, the Tribunal, is to find out, whether a particular Scheme, is opposed to public policy or otherwise, by applying its judicial mind - As far as the present case is concerned, it cannot be forgotten that both the Company Directors, were deemed to be disqualified, in the teeth of ingredients of Section 164 (2) (b), read with Rule 14 (2) of the Companies Appointment and Qualification of Directors Rules 2014. There is a clear cut violation of Section 73 of the Companies Act, 2013, in regard to the Prohibition on acceptance of deposits from public, for acceptance of deposits, from the Directors of the 1st Appellant / Company, in respect of the years 2014-15 and 2015-16.
On a careful and meticulous consideration of the contentions advanced on either side, in the light of the violations, committed by the Appellants, under the Companies Act, keeping in mind that both the Companies had not given replies, to the Show Cause Notices, issued by the Registrar of Companies, Ernakulam, Kerala, and also taking note of the surrounding facts and circumstances of the present case, comes to an inevitable, inescapable and irresistible conclusion that the Appellants, had not made out a fit and proper case, for Sanctioning the Scheme of Amalgamation, in accordance with Law - Appeal dismissed.
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2023 (1) TMI 554 - MADHYA PRADESH HIGH COURT
Suit for specific performance of a contract - Seeking to transfer and register the land in the name of the Applicant Firm as it has duly purchased and paid total sale consideration - HELD THAT:- It is apparent that no suit or legal proceedings shall be commenced or proceeded with, except by leave of the court and subject to such terms as the court may impose.
This court is of the considered opinion that the contents of IA No.2785/2017 partake of the nature of civil suit for specific performance of a contract. A detailed reply and two additional replies have also been filed by the Official Liquidator as also the rejoinder and photocopies of many documents have also been relied upon by the both the parties, whose veracity cannot be checked only on affidavits and arguments. In such circumstances, when various disputed questions of facts and laws are also involved, this court does not find it to be a fit case to decide in a summary manner, and thus, is of the considered opinion that the applicant firm can be asked to file a civil suit before the court of competent jurisdiction where the parties can lead evidence in support of their respective claims.
Application allowed in part.
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2023 (1) TMI 512 - MADHYA PRADESH HIGH COURT
Vicarious liability of Directors who resigned - Non-submission of annual return and holding of annual general meeting in the relevant year - non-submission of financial statement within the stipulated time with Registrar of Companies - not having registered office capable of receiving and acknowledging the communication - AGM has not been held proceedings has not been forwarded to Registrar - HELD THAT:- This is a case where admittedly petitioner worked as Director of the Company between the period 30th September, 1992 till 13th March, 1995 and then resigned. In 2011, under the mistaken belief, complaint was filed against present petitioner also for alleged non-compliance of Section 220 of Act, 1956 for which penalty is provided under Section 162 of the Act, 1956 - Admittedly, alleged non-compliance is for the period 2008-2009 and year 2009-2010 where some defaults on the part of the Company are made. Admittedly, petitioner resigned w.e.f. 13th March, 1995. Much thereafter, alleged defaults have been committed.
In the case of State of Haryana Vs. Bhajanlal [1990 (11) TMI 386 - SUPREME COURT], seven parameters were prescribed under which court can interfere for resorting to extraordinary jurisdiction. Here contingency No.5 is attracted and same states that Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
It appears that petitioner made out his case for interference. Once, he resigned in the year 1995, then he cannot be fastened with any liability for a period of 2008-2009 and 2009-2010 - Petition allowed.
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2023 (1) TMI 460 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPLE BENCH , NEW DELHI
Striking off Company’s name from the Register of Companies - defaults in statutory compliances, namely, failure to file financial statements and annual returns - Section 248 (5) of the Companies Act, 2013 - HELD THAT:- The Company being in the Real Estate Development and Construction and having regard to the fact that the Company in this Appeal has come out with the plea that in the event of revival of the Company and the restoration of name of the Company in the Register maintained by the ROC, it shall file all outstanding statutory documents namely, the financial statements for the financial years and also the annual returns along with the file fees and the additional fees as applicable on the date of the actual filing, on a careful consideration of the contentions advanced by both sides, this Tribunal by exercising of sound discretion, deems it just and proper to restore the name of the Appellant Company, however, on payment of cost of Rs. 50,000/- for the laches and omissions on part of the Appellant Company’s management.
Before parting of the case this Tribunal observes that the restoration of the name of the Company is subject to filing of all the outstanding documents required by law and completion of all statutory formalities including payment of any late fee for the outstanding period and any other charges leviable by ROC and also payment of cost of Rs. 50,000/- to be paid to the ‘Prime Minister’s Relief Fund’ within two weeks from today and produce the said receipt for verification before the Respondent.
The name of the Company shall stand restored on the Register of ‘Registrar of the Companies’ as if the name of the Company was not struck off in accordance with Section 248 (5) of the Companies Act, 2013 - Appeal allowed.
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2023 (1) TMI 307 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
Seeking restoration of the name of the Company in the Register maintained by the Registrar of Companies (RoC) - it is alleged that the Appellant company has not filed its return of income since inception, thereby violating the mandatory provisions under Section 139 of the Income Tax, 1961 - HELD THAT:- There is no illegality committed by the Ld. Adjudicating Authority while passing the impugned order and also there is no cogent reason to interfere. Therefore, we do not need to interfere in the impugned order. The impugned order passed by the National Company Law Tribunal (Court-V, New Delhi) is hereby affirmed.
There is no merit in the Appeal. The Appeal is hereby dismissed.
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2023 (1) TMI 257 - SUPREME COURT
Jurisdiction of NCLT over violation of SEBI law - Scope of the rectificatory jurisdiction of the National Company Law Tribunal under Section 59 of the Companies Act, 2013 - determination of appropriate forum for adjudication and determination of violations of the Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeover) Regulations, 1997 - HELD THAT:- The scope and ambit of Section 155 of the Companies Act, 1956, as it then existed, fell for consideration in a decision of this Court in Ammonia Supplies [1998 (9) TMI 427 - SUPREME COURT]. The application for rectification in Ammonia’s case was filed under Section 155, and it was submitted that the scope for rectification under Section 155 is enlarged in comparison with the position as it were under Section 38 of the 1913 Act. Rejecting the argument, this Court in Ammonia held that the jurisdiction exercised by the court for rectification of the register of members is essentially limited - It is evident from the above that while interpreting Section 155, this Court has held that the power of CLB is narrow and can only consider questions of rectification. If a petition seeks an adjudication under the garb of rectification, then the CLB would not have jurisdiction, and it would be duty-bound to re-direct the parties to approach the relevant forum. The Court also held that the words ‘sufficient cause’ cannot be interpreted in a manner which would enlarge the scope of the provision.
The company petition under Section 111A of the 1956 Act for a declaration that the acquisition of shares by the Respondents as null and void is misconceived. The Tribunal should have directed the Appellant to seek such a declaration before the appropriate forum. The Appellate Tribunal is, therefore, justified in allowing the appeal and setting aside the order of the Tribunal.
Appropriate forum for enquiry and adjudication of violations of the SEBI Regulations - HELD THAT:- In the exercise of its adjudicatory powers under Section 15-I, the SEBI has the power to appoint officers for holding an inquiry, give a reasonable opportunity to the person concerned and determine if there is any transgression of the rules prescribed. The Board has the power to impose penalties for violations and also restitute the parties. The adjudicatory power also includes the power to settle administrative and civil proceedings under Section 15JB of the SEBI Act - The regulatory jurisdiction of the Board also includes ex-ante powers to predict a possible violation and take preventive measures. The exercise of ex-ante jurisdiction necessitates the calling of information as provided in Sections 11(2)(i), 11(2)(ia) and 11(2)(ib) of the SEBI Act. Where the Board has a reasonable ground to believe that a transaction in the securities market is going to take place in a manner detrimental to the interests of the stakeholders or that any intermediary has violated the provisions of the Act, it may investigate into the matter under Section 11(C) of the SEBI Act. In other words, being the real-time security market regulator, the Board is entitled to keep a watch, predict and even act before a violation occurs. It is in this context, that the SEBI (SAST) Regulations and the SEBI (PIT) Regulations, with which we are concerned in this case, are to be understood.
The important role of the Regulator cannot be circumvented by simply asking for rectification under Section 111A of the 1956 Act. Such an approach is impermissible. The scrutiny and examination of a transaction allegedly in violation of the SEBI (PIT) Regulations will have to be processed through the regulations and remedies provided therein - When Constitutional Courts are called upon to interpret provisions affecting the exercise of powers and jurisdictions of these regulatory bodies, it is the duty of such Courts to ensure that transactions falling within the province of the regulators are necessarily subjected to their scrutiny and regulation. This will ensure that the regulatory body, charged with the duty to protect the consumers has real time control over the sector, thus, realizing the purpose of their constitution.
The Appellant is not justified in invoking the jurisdiction of the CLB under Section 111A of the Act for violation of SEBI regulations. We are also of the opinion that the Tribunal committed an error in entertaining and allowing the company petition filed under Section 111A of the 1956 Act. Though we are not in agreement with the reasoning adopted by the Appellate Tribunal in the impugned order, we are in agreement with its conclusion that the Tribunal exceeded its jurisdiction and therefore, the Appellate Tribunal was correct in setting aside the judgment dated 05.07.2017.
Appeal dismissed.
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2023 (1) TMI 196 - KARNATAKA HIGH COURT
Anti-Competitive Acts - whether the warranty policy has (i) potentially resulted in denial of market access to parallel importers & resellers of Boxed Micro-Processors for Desktop and Laptop PCs & (ii) the risk of higher pricing for the said articles in India? - powers under Section 26(1) of the Competition Act, 2002 - HELD THAT:- The argument of learned Senior Advocate Dr. A.M.Singhvi that the investigation now ordered under section 26(1) of the 2002 Act may have a ‘detrimental effect’ on the business reputation of the petitioners, may be arguably true, to some extent. He also contended that the investigation to be undertaken by the Director General in terms of order under section 26(1) of the 2002 Act, (which he termed ‘draconian law’) involves an intrusive and free ranging inquiry into every aspect of his clients’ business.
Hon’ble Delhi High Court in GOOGLE vs. COMPETITION COMMISSION OF INDIA [2015 (4) TMI 1234 - DELHI HIGH COURT] although did not use the word ‘draconian’ observed that the powers of Director General to investigate under section 26(2) are far wider than the powers of the police under the Code of Criminal Procedure, 1973, is also true. However, similar contentions taken up by the very same counsel in FLIPKART INTERNET PVT. LTD., AMAZON SELLER SERVICES PRIVATE LIMITED VERSUS COMPETITION COMMISSION OF INDIA AND ORS. [2021 (7) TMI 1398 - KARNATAKA HIGH COURT] were repelled by the Division Bench of this Court and the same has attained finality - It would once again be fruitful to advert to the foundational philosophy of competition law. The central concern…is that firm or firms can harm competition and inflict harm on customers and ultimately end consumers where they possess some degree of market power.
Even otherwise, there are several checks & balances against the abuse of power vested in the Commission which comprises of experts and qualified persons as its constituent members. Commission’s stature and track record as can be ascertained from several rulings of the Apex Court and various High Courts, is also a fair assurance against the abuse of power. An opportunity of hearing is also provided to the stakeholders at the stage of investigation and thereafter whilst punitive or corrective action are being considered. This apart, a right of appeal is provided under section 53 A of the Act, as amended in 2007, once the report of investigation is submitted by the Director General. The adverse consequences of proceedings taken in accordance with law ordinarily fall under the maxim, ‘damnum sine injuria’.
It is not that in no case in which Commission directs investigation under section 26(1) of the Act arbitrarily and unreasonably, the aggrieved cannot invoke writ jurisdiction. Such cases warranting indulgence of Court ordinarily involve ‘manifest arbitrariness’ as discussed in SHAYARA BANO vs. UNION OF INDIA [2017 (9) TMI 1302 - SUPREME COURT] and therefore, even in respect of proceedings at the preliminary stage, remedy can be had by the aggrieved. However, in this petition no such case is made out, despite lengthy arguments and bulky pleadings of the petitioners that justified indulgence of this Court. The petitioners hastily rushed to this Court and unjustifiably secured an interim order that interdicted an inquiry of preliminary nature, for all these years, to the enormous prejudice of public interest. This Writ Petition, besides being premature and absolutely devoid of merits, is an abortive attempt by the petitioners to scuttle the innocuous statutory proceedings of the Commission. Therefore, this is a fit case for dismissal with exemplary costs.
This petition is liable to be dismissed and accordingly it is, with a cost of Rs.10,00,000/- only, payable to the 1st respondent – Competition Commission of India within six weeks.
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2023 (1) TMI 154 - MADHYA PRADESH HIGH COURT
Vicarious liability of Additional Director - Non-executive Independent Directors or not - Officer in default - non repayment of deposits by the Company to the depositors - alleged violation of section 74 of Companies Act - HELD THAT:- This is a case where raison d' etre of petitioner's submissions is his status in the Company as Non-executive Independent Director. According to the petitioner, he was appointed as Non-executive Independent Director in the Company since 29/11/2006 and worked till 31/3/2015 in same capacity, therefore, submission advanced on behalf of petitioner was that the petitioner was neither Key Managerial Personnel as per Section 2 (51) nor he was Officer in Default as per Section 2 (60) of the Companies Act, 2013.
The petitioner was Director in the Company and even if any doubt exists in respect of his status in the Company whether as Additional Director, Independent Director or Director then it can only be decided on the anvil of evidence to be led by the parties before the trial Court and not invoking the extra ordinary jurisdiction under Section 482 of Cr.P.C. Even otherwise, Section 2(51) of the Companies Act, 2013 defines Key Ministerial Personnel in relation to Company and it provides an exhaustive list of Officers - Section 2 (60)(v) provides a broad mechanism under which any person related to the Company's affairs can be included. Here it is to be noted that in sub-section (iv) and (v) of Section 2 (60) word person has been used, ergo, it expands the spectrum / scope of “Officer who is in default”. Sub-section (iv) and (v) defines exhaustive list of participants in different manner. Therefore, on this count also, case of petitioner lacks merits.
In the cumulative analysis, no error of law has been made by Court below while passing the impugned order and rightly taken cognizance against the petitioner.
Petition dismissed.
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