|
Advanced Search Options
Companies Law - Case Laws
Showing 341 to 360 of 14683 Records
-
2022 (12) TMI 826 - HIMACHAL PRADESH HIGH COURT
Levy of stamp duty - Amalgamation of the company - whether the petitioner company, pursuant to order of amalgamation passed by Bombay High Court, permitting it to change its name from M/s Inox Air Products Ltd. to M/s Inox Air Products Private Ltd. is liable to pay stamp duty on account of sale, purchase transfer, if any, of the premises owned/possessed by company having amalgamated into another company, in view of specific law laid by Division Bench of this Court in JSTI TRANSFORMERS PVT. LTD VERSUS THE STATE OF HIMACHAL PRADESH THROUGH ITS PRINCIPAL SECRETARY-CUM-FINANCIAL CONTROLLER (REVENUE) , GOVERNMENT OF HIMACHAL PRADESH, GOVERNMENT SECRETARIAT, SHIMLA, DEPUTY COMMISSIONER, SOLAN, DISTRICT, HIMACHAL PARDESH [2022 (4) TMI 1480 - HIMACHAL PARDESH HIGH COURT]?
HELD THAT:- In the instant case, it is not the case of the respondents that while effecting change in the name of the company, sale/purchase, if any, of the property took place inter se two entities as detailed rather, Certificate of Incorporation issued by Registrar of Companies in the name of “M/s Inox Air Products Private Limited” clearly reveals that there is only change of the name in terms of Ss.21 and 23 of Companies Act. Since no new entity, if any, has come into existence on account of proposed change in the name of company coupled with the fact that there is no document available on record, if any, to show that sale-purchase of properties took place between two entities, as noticed above, action of the respondents, demanding stamp duty appears to be highly unjust and unreasonable.
While placing reliance on various judgments passed by this Court as well as other Constitutional Courts, the Division Bench has categorically held in the judgment supra that upon conversion of a registered partnership firm to an LLP under the provisions of the Limited Liability Partnership Act, all movable and immovable properties of erstwhile registered partnership firm automatically vest in the converted LLP by operation of Section 58(4) (b) of the Limited Liability Partnership Act.
The Co-ordinate Bench of this Court in Sozin Flora Pharma LLP Vs. State of Himachal Pradesh and another, which otherwise has been taken note in JSTI Transformer Pvt. Ltd, while dealing with similar facts and circumstances, where partnership Firm became a private limited liability partnership, categorically held that the stamp duty /registration fee cannot be levied upon conversion of partnership firm to a limited liability partnership firm. If it is so, no permission, if any, under Section 118 of H.P. Tenancy and Land Reforms Act, 1972 is required for change of name in the revenue documents from “M/s Inox Air Products Ltd.” to “M/s Inox Air Products Private Ltd.”
Respondents are directed to consider the request of the petitioner-company to effect change of name of petitioner company as “M/s Inox Air Products Private Limited”, without insisting upon payment of stamp duty - Petition disposed off.
-
2022 (12) TMI 731 - DELHI HIGH COURT
Powers to impose monetary as well as non-monetary sanctions - online intermediation services - HELD THAT:- This Court has perused the order dated 6th December, 2022 passed by the NCLAT, as also, the order dated 19th October, 2022 passed by the CCI. Various directions have been issued by the CCI vide order dated 19th October, 2022, which were challenged before the NCLAT. One of the components of the said order dated 19th October, 2022 is the aspect relating to penalty. The total amount, which has been fixed as penalty in the case of the Petitioner herein, is to the tune of Rs.223.48 crores.
The appeal before the NCLAT is a first appeal challenging the order passed by the CCI. Thus, in the opinion of this Court, a pre-deposit of 10% of the penalty amount could not have been made for mere admission of the appeal. It is obvious that the intention, which may not be explicitly made clear in the entire order dated 6th December, 2022 passed by the NCLAT, is against the recovery of the remaining 90% of the penalty amount.
It is directed that subject to the deposit of 10% of the total penalty amount of Rs.223.48 crores, in accordance with the order of the CCI, as directed by the NCLAT, no recovery shall be effected in respect of the remaining 90% of the penalty amount. The said deposit shall be without prejudice to the rights and contentions of the parties - Petition disposed off.
-
2022 (12) TMI 726 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
Restoration of the name of the Company in the Register maintained by the Registrar of Companies (the RoC) - Section 252 of the Companies Act, 2013 - HELD THAT:- The Appellant Company is in litigation therefore, the Company has not filed the financial statements and also without giving opportunity of hearing, the Respondent No. 1/Registrar of Companies struck off the name of the Appellant Company's from the Register maintained by him, but in view of the fact and also the Bank Statements of the Appellant Company from 2015 -2018 shows that the Appellant Company is having substantial movable as well as immovable assets. Therefore, it cannot be said that the Appellant Company is not carrying on any business or operations. Hence, the order passed by the National Company Law Tribunal (Court-V, New Delhi) as well as Registrar of Companies, NCT Delhi & Haryana is not sustainable in law.
Appellant shall pay costs of Rs. 50,000/- to the Registrar of Companies, NCT Delhi & Haryana within 08 (Eight) weeks from passing of this Judgment - after restoration of the Company's name in the Register maintained by the RoC, the Company shall file all their Annual Returns and Balances Sheets. The Company shall also pay requisite charges/fee as well as late fee/charges as applicable within 08 (Eight) weeks thereafter.
Appeal allowed.
-
2022 (12) TMI 667 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
Seeking issuance of summon the witness for examination - NCLT refused to issue summons - disputes of oppression and mismanagement of a company. - The Ld. Counsel for the Appellants during the course of argument and in his memo of Appeal submitted that the Tribunal has completely failed to appreciate that it possesses powers under Section 242 of the Companies Act, 2013 to issue summons to individuals and examine them on oath in appropriate cases.
HELD THAT:- the Tribunal has examined those documents which have been filed by the parties and the main matter is ripe for arguments, therefore, in the facts and circumstance of the case aforenoted, there is no illegality in the impugned order. Therefore, we do not find any merit in the instant Appeal.
Order of NCLT affirmed.
-
2022 (12) TMI 666 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , CHENNAI
Payment of Audit Fee to auditor of the company - fixation of audit fee - NCLT directed the administrator to pay Rs. 12 Lakh with GST - HELD THAT:- As far as the ‘present case’ is concerned, this ‘Tribunal’, on going through the ‘impugned order passed by the National Company Law Tribunal, Kochi Bench, Kochi comes to an ‘inevitable’, ‘irresistible’ and ‘inescapable’ conclusion, that the said ‘Order’, suffers from ‘Legal infirmity’, in that, the ‘contents’ of letter dated 01.06.2022 of the ‘Babu A. Kallivayalil & Co., Chartered Accountants were not adverted to b y the ‘Tribunal’ in detail, especially, touching upon, the aspect of ‘Fees’
Matter restored back for re-adjudication.
-
2022 (12) TMI 665 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
Restoration of the name of the Company - going concern - default in statutory compliance and failure to file return since 31.03.2013. - It submitted that, the Appellants Company is being continuously operative and the directors were administrating the functions of the business right since incorporation. - HELD THAT:- going through the pleadings made on behalf of the parties and in view of the fact that the Financial Statements for the year 2014-15, 2015-16, 2016-17 and Income Tax Return of the Appellant Company shows that the Appellant Company is having substantial movable as well as immovable assets. Therefore, it cannot be said that the Appellant Company is not carrying on any business or operations.
The name of the Appellant Company be restored to the Register of Companies subject to the conditions.
-
2022 (12) TMI 655 - GUJARAT HIGH COURT
Independence of the judicial officers of NCLT - reappointment of the petitioner - judicial member of the National Company Law Tribunal - Section 413 of the Companies Act, 2013 - The petitioner held office for 5 years as contemplated. It appears that the petitioner sent her willingness on 02.02.2021 to continue as Member(Judicial), National Company Law Tribunal (NCLT) for another term of 5 years.
HELD THAT:- Merely because the petitioner has shown her willingness to be considered, merely because she is liable to be considered and merely because she has opted for reappointment, could not be ground to seek writ from the Court that her appointment process may be completed. The petitioner's case could be at the best considered along with other aspiring candidates in accordance with law and on its own merits. Upon being queried, learned senior advocate for the petitioner stated that five persons have been seeking appointment as Members of the Tribunal. Any direction or observation in respect of the petitioner in particular to complete the process cannot be granted.
While therefore, the first prayer cannot be considered, the second prayer is regarding formation of policy that the appointment shall be rational and with transparency. It has to be only stated in this regard that the authorities cannot be presumed to be not alive to sub-serve the interests of NCLT and act in accordance with the directions of the Supreme Court as above. No further direction is necessary.
The prayers in the petition are not liable to be granted.
-
2022 (12) TMI 620 - DELHI HIGH COURT
Disqualification of the Petitioners - Deactivation of Director Identification Number (DIN) and the Digital Signature Certificate (DSC) of the Petitioners - non-filing of balance sheet and other returns with the Registrar of Companies. - The grievance of the Petitioners is that they have been disqualified without issuing any show cause notice, or giving any giving any opportunity to present their case. - HELD THAT:- This scheme has been introduced in view of the COVID-19 pandemic with the aim to enable a fresh start to defaulting companies and directors of such companies. The disqualification of defaulting companies was a step which was taken sometime in 2016-17 in order to ensure that filing of regular returns and compliances are undertaken strictly as per the provisions of the Act. It was also meant to be a measure to ensure that entities that are not conducting businesses are not misused as 'shell companies' for any improper activities. A substantial part of the disqualification period has already been completed. The introduction of the CFSS is itself a step for 'providing a fresh start'. Under such circumstances, continuation of the disqualification would defeat the Scheme and its purpose.
In furtherance of the purpose of this scheme, directors of struck off companies who seek to be appointed as directors of other/new companies, ought to be provided an opportunity to avail of this scheme, provided that they have undergone a substantial period of their disqualification.
Following the decision in Mukut Pathak & Ors. v. UOI & Ors., [2019 (11) TMI 319 - DELHI HIGH COURT] and Anjali Bhargava & Anr. v. UOI & Anr. 2021 (1) TMI 1228 - DELHI HIGH COURT], this Court directs that the DIN/DSC of the Petitioners be reactivated within 2 weeks to enable them to file the requisite documents in terms of the Companies Act, 2013 and effect compliances in respect of the companies.
-
2022 (12) TMI 619 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
Seeking lifting of corporate veil - Recovery of dues - dispute related to Joint Venture Agreement between the parties - Learned counsel for the HUDCO at this juncture has submitted that corporate veil of the Bakshi Holdings Pvt. Ltd. need to be lifted and shares held by Bakshi Holdings Pvt. Ltd. also held to be covered by the direction issued by Recovery Officer.
HELD THAT:- We have noticed that on the application which was filed by the HUDCO on which order was passed on 02.02.2016 was only with regard to 3100 shares held by Vikram Bakshi in M/s Connaught Plaza Restaurants Pvt. Ltd. Learned counsel for the HUDCO has emphasized on the expression “or any other quantity in the name of CD#3 till further orders” as occurring in the order dated 02.02.2016. The expression “or any other quantity in the name of CD#3”, CD#3 being Vikram Bakshi obviously referred to the shares in the name of Vikram Bakshi in M/s Connaught Plaza Restaurants Pvt. Ltd apart from aforesaid 3100 shares. It is not the case of either of the parties that any more shares apart from 3100 shares are owned by Vikram Bakshi in M/s Connaught Plaza Restaurants Pvt. Ltd. Hence, the order dated 02.02.2016 issued by the Recovery Officer has to be held to be confined to 3100 shares.
On the strength of said order, the Counsel for the HUDCO is not right in his submission that corporate veil of other company in which Vikram Bakshi is also shareholder should also be lifted i.e. Bakshi Holdings Pvt. Ltd. Present is not a case where there is any occasion for lifting corporate veil of other companies which has nothing to do with recovery of Ascot Hotels and Resorts Pvt. Ltd.. HUDCO is fully entitled to recover its dues which are owed by Ascot Hotels and Resorts Pvt. Ltd. On the strength of Recovery Certificate granted by Debts Recovery Tribunal being Recovery Certificate No. 330/2015, Recovery Officer in fact is proceedings to effect recovery and certain amount has already been deposited before the Recovery Officer including the value of 3100 shares of Vikram Bakshi, which were under restraint in the Recovery Officer’s order.
-
2022 (12) TMI 480 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , CHENNAI BENCH
Validity of allotment of shares to majority shareholders of private limited company - family company - rectification of member’s register of the R-1 Company - legality of the Extra Ordinary General Meeting conducted on 23.03.2017 - legality of board meetings held on 28.02.2017 and 25.3.2017 - HELD THAT:- It is mandatory to offer to the shares to the existence shareholders in proportions their shareholding and this Tribunal does not find any document to establish that the company issued letter of offer to the existing shareholder for offering the shares for subscription. The NCLT at para 32 observed that there is no proof to show that offer is made to the petitioners for purchasing the shares. No proof that such an offer is made to any of the Petitioners to purchase the shares. There is also no valuation report to value the shares of the Company.
This Tribunal having gone through the documents and the relevant provisions of law is of the view that the Company has not complied with the law with regard to allotment of shares to the existing shareholders and also has not followed the mandatorily requirement of notice calling EOGM. The stand of the Company is that since it is a family Company and the decisions are taken in an informal manner by the members and no formal notices were required to be issued in view of the closely held family company.
Be that as it may, between the equity and law, the law will prevail. In the present case, the NCLT and this Tribunal is firm opinion that the company has not followed the principles of natural justice by issuing notice for the EOGM and issue letter of offer to the existing shareholders of the Company for allotment of shares.
Appeal dismissed.
-
2022 (12) TMI 413 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
Restoration of name of the Company - Seeking permission from this Tribunal, to file the Income Tax Returns, for the Assessment Years 2017-18, 2018-19, 2019-20 and 2020-21 - the documents were not filed before the Tribunal - HELD THAT:- In the instant case, according to the Appellant, because of slow down in the Real Estate market after completing its Real Estate Projects in 2014-15, the Appellant / Company, continued to do its incidental works and continue to generate Revenue and to look after the proper Real Estate Project, but lot of money was stuck in the hands of Appellant’s Debtors’, for which, the Appellant/ Company, initiated proceedings and eight criminal cases (under Section 138 of the N I Act, 1881) are pending (before the various Metropolitan Magistrate Courts), against its Debtors, (ranging from Rs.1,00,000/-, Rs.15,000/-, Rs.3,00,000/-, Rs.1,15,000/-, Rs.9,00,000/-, Rs.3,00,000/-, Rs.60,000/- and Rs.22,500/- respectively), and that apart, is to recover approximately Rs.18,12,500/- from its Debtors, in respect of sums.
The Appellant / Company in the instant Appeal has come out with a plea that in the event of Revival of the Company and the Restoration of name of the Company, in the Register, maintained by the Respondent, it shall file all Outstanding Statutory Documents, Viz. the Financial Statements for the Financial Years from 2016-17, 2017-18 and the Financial Statement and Annual Return 2018-19, along with the Filing Fees and the Additional Fee, as applicable on the Date of Actual Filing, and the Certified copy of the Order of Tribunal, for the Restoration of name of the Company, to the Register, maintained by the Respondent.
On a careful consideration of the contentions advanced on side of the Appellant / Company, this Tribunal, taking out of the fact that the Appellant / Company has initiated various proceedings before the Criminal Courts (8 in number) against its Debtors, and is to recover approximately Rs.18,12,500/- from its Debtors and bearing in mind of the prime fact, Right to seek the name of the Company (to be entered, in the Register of Companies), is not Lost or Extinguished, as long as 20 years had not expired and apart from these, the Appellant / Company, in the instant Appeal, had unequivocally averred that in the event of Revival of the Company and Restoration of the Company’s name in the Register, maintained by the Respondent, it shall file all Statutory Documents Viz. Financial Statements from 2016-17, 2017-18 and Financial Statement and Annual Return for 2018-19 along with Filing Fees and the Additional Fees, etc., in all Justness, Fairness, Equitableness and Reasonableness, by exercise of sound discretion, deems it Prudent, Just and Proper, to Restore the name of the Appellant / Company, and that Laches / Omissions / Lapses (Failures), on the part of the Appellant / Company’s management, in not submitting the filing of Annual Returns and Financial Statements, in time, can be saddled with a Levy of Costs, to prevent an Aberration of Justice, and to promote Substantial Cause of Justice, otherwise, it will cause Irreparable Harm / Hardship, Inconvenience and serious Prejudice to the Appellant / Company, as opined by this Tribunal.
The impugned order is set aside - appeal allowed.
-
2022 (12) TMI 412 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
Oppression and Mismanagement - Validity of Board Meeting - appointment of Respondents 2 to 5 as Additional Directors - legality of allotment of shares made on 04.03.2013, 22.04.2013 to the second, third, sixth & seventh Respondents - cancellation of said allotment and rectification in the register of Members in order to restore the original Shareholding pattern - legality of removal of the Petitioners from the directorship of the Company under Section 284 of the Companies Act 1956 in the AGM - Section 421 of the Companies Act, 2013.
HELD THAT:- This Tribunal having gone through the issues framed by the NCLT are of the view that they relate to the acts of Oppression and Mismanagement affecting the functioning of the Company and therefore have the jurisdiction to entertain and adjudicate these acts of Oppression and Mismanagement alleged to have been committed by the Appellants under Sections 397 & 398 of the Companies Act, 1956, (Sections 241 & 242 of the Companies Act, 2013). The issues raised by the Respondents are reflected in para 7 of the Company Petition 93/2019 and therefore it cannot be said that these issues were never pleaded or that these issues do not form part of the acts falling within the ambit of the definition of ‘Oppression and Mismanagement’ as defined under Sections 241 & 242 of the Companies Act 2013.
The pendency of the Criminal Case has no relevance to the adjudication by the NCLT regarding ‘acts’ of ‘Oppression and Mismanagement’. NCLT has only based its observations that the Meeting had never taken place on the findings given by Truth Labs and the Government Forensic Laboratory, ‘apart from other material on record’. It appears from the record that Respondent No. 4 disputes his presence at the Board Meeting dated 01.10.2012. It is significant to mention that the letter dated 11.05.2015 addressed by the Bureau of Immigration, Ministry of Home Affairs, Government of India shows that the fourth Respondent had never attended any Board Meeting on 01.10.2012 as he was travelling abroad as on 01.10.2012.
The NCLT has not based its opinion about the disputed Meeting on 01/10/2012, solely on the reports of Truth Labs filed before NCLT or that of Government Forensic Laboratory which is part of the record at the Criminal Court but rather on the other documents as well, including the relevant dates which substantiate the stand of the Respondents that the disputed Meeting never took place on 01.10.2012. Therefore, the contention of the Learned Counsel for the Appellant that the statements made under Section 164 is inadmissible and that the Criminal Case is still pending, is of no relevance here keeping in view the facts of the attendant case on hand
This Tribunal is of the earnest view that NCLT had rightly referred to the consent letters of the third Appellant and the fourth Respondent both being backdated as the DIN Nos. were allotted by the Ministry of Corporate Affairs only on 26.12.2012 and 21.12.2012 respectively, together with all Reports of Truth Labs and Andhra Pradesh Foresnic Science Laboratories and also the evidence that the fourth Respondent was not even in India as on the date and has passed the Impugned Order, allowing the Company Petition.
Appeal dismissed.
-
2022 (12) TMI 319 - 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) - section 252 of companies Act - HELD THAT:- In view of the fact that the Appellant Company have purchased the lands between 2011-2013 and Audit Reports along with Balance Sheet and Financial Statements of the Appellant Company from 2012-2013 to 2019-2020 shows that the Appellant Company is having substantial movable as well as immovable assets. Therefore, it cannot be said that the Appellant Company is not carrying on any business or operations. Hence, the order passed by the NCLT (Cuttack Bench, Cuttack) as well as RoC, Odisha is not sustainable in law.
The name of the Appellant Company be restored to the Register of Companies subject to the compliances imposed - application allowed.
-
2022 (12) TMI 318 - 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) - section 252 of Companies Act, 2013 - HELD THAT:- In view of the fact that the financial statements 2016-2017, 2017-2018, 2018-2019, 2019-2020 and Income Tax Return of the Appellant Company shows that the Appellant Company is having substantial movable as well as immovable assets. Therefore, it cannot be said that the Appellant Company is not carrying on any business or operations. Hence, the order passed by the NCLT, New Delhi as well as RoC, NCT Delhi & Haryana is not sustainable in law.
The name of the Appellant Company be restored to the Register of Companies subject to the conditions imposed - application allowed.
-
2022 (12) TMI 317 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
Seeking restoration of the name of the Appellant Company in the Register maintained by the Registrar of Companies (RoC), NCT of Delhi and Haryana - Section 421(1) of the Companies Act, 2013 - HELD THAT:- In view of the fact that the Audited Balance Sheet for the year ended 31.03.2016, 31.03.2017, 31.03.2018 & 31.03.2019 and Income Tax Return of the Appellant Company shows that the Appellant Company is having substantial movable as well as immovable assets. Therefore, it cannot be said that the Appellant Company is not carrying on any business or operations. Hence, we are of the view that the order passed by the NCLT, New Delhi as well as RoC, NCT Delhi & Haryana is not sustainable in law.
The name of the Appellant Company be restored to the Register of Companies subject to the compliances imposed - application allowed.
-
2022 (12) TMI 275 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , CHENNAI BENCH
Oppression and Mismanagement - Minimum qualification of shares for invocation of petition filed under Section 241 of the Companies Act, 2013 - registration of shares by means of transfer in favour of the Respondents under Section 58(5) of the Companies Act, 2013 - power of Tribunal to order for cost to be paid to the Respondents - power of Tribunal to cause investigation into the affair of the company under the ‘Companies Act, 2013 - power of Tribunal to recommend to Institute of Chartered Accountant to take suitable disciplinary action on 9th Respondent (Chartered Accountant Firm on alleged collusion with the Appellants to falsify the record of the company.
Whether the Respondents possessed minimum 10% shares in order to invoke petition filed under Section 241 of the Companies Act, 2013? - HELD THAT:- It has been brought out that the Joint Managing Director, Managing Director along with the 2nd Respondent handed over all the documents including Original Share Certificates along with Share Transfer Forms to the 9th Respondent (Chartered Accountants Firm of the company). However, no action was taken despite reminders being sent by the Respondents to the Appellants. It is noted that upon receiving a letter dated 26.04.2017 from the Respondents, the 9th Respondent i.e. Chartered Accountants Firm conveyed that the Managing Director of the company had collected back necessary documents from their office to take required action for transfer of shares - To settle the disputes after reconciliating meting among the shareholders, a Settlement Agreement was entered between the parties on 09.12.2017, wherein it was mentioned that the Appellants would transfer 4.5% shares of the company to the Respondents. The Settlement Agreement was recognized and approved by the board in its meeting on 12.12.2017. However, no such transfer was made.
It is the case of the Appellants that non transfer of shares should be treated as inter se dispute and the Respondents herein should have approached appropriate Civil Court to enforce transfer of shares under Specific Relief Act, 1963. In this regard, this Appellate Tribunal observes that since the transfer of the shares were agreed upon between the parties which was approved in Board Resolution of the company and therefore the Tribunal had suitable power under Section 242 of the Companies Act, 2013 r/w Rule 11 of the National Company Law Tribunal, Rules 2016 - this Appellate Tribunal considered non transfer of shares in favour of the Respondents herein tantamount to the oppressions of the ‘Respondents’ as per Section 242 r/w Section 58 of the Companies Act, 2013.
Whether the Tribunal had the power to cause investigation into the affair of the company under the Companies Act, 2013? - Whether the Tribunal is empowered to recommend to Institute of Chartered Accountant to take suitable disciplinary action on 9th Respondent (Chartered Accountant Firm on alleged collusion with the Appellants to falsify the record of the company? - HELD THAT:- There is no power with the Tribunal to directly order, an investigation of the Company’s Affairs by an independent Person / Firm (Mr. K. Venkitachalam Aiyer & Company as Chartered Accountants) - Similarly, no power exist with the Tribunal, to ask an Autonomous Professional Body (herein the Institute of Chartered Accountant of India) to take disciplinary action against its Member.
The Tribunal ought to have taken into account the provision as contained in Section 213 of the Companies Act, 2013 and after following due process after hearing the company herein, the Tribunal, could have asked the Central Government, to appoint the Inspector, to investigate and take further action as per process laid down in the Companies Act, 2013 - This Appellate Tribunal, therefore comes to the conclusion that the Tribunal erred on the aforesaid accounts of investigation and asking Autonomous Body for taking disciplinary action against the Chartered Accounts Firm - This Appellate Tribunal, is of the considered opinion that there is no error, in the impugned order dated 21.04.2020, passed by the Tribunal, w.r.t its order contained in Para- 29 (i), (ii) & (v).
Appeal disposed off.
-
2022 (12) TMI 227 - TELANGANA HIGH COURT
Winding up of company - Default in payment of value of the goods - statutory notices not responded - matter later on settled between the petition creditor and the appellant company - HELD THAT:- The company Court ordered winding up of the company only on the ground that the Company Petition was not contested and that the liability with the petitioner was proved. There was no other material to hold that the company was in doldrums and there was no other option but to windup. As required by Section 434 (1) (c) of the Act, there was no occasion to learned single Judge to take into account the contingent and prospective liabilities of the company.
Since the matter is settled between the petition creditor and the appellant company and that settlement has been placed on record and no one has raised objection against recalling the windup order and since dues of the secured creditor have already been satisfied, no useful purpose would be served keeping alive the winding up order. Winding up a company is a last resort. Every effort should be made to ensure that the company revives and business of a company continues in accordance with law. Operation of a company also generates employment. But, for the fact that the appellant was set ex parte there was no substantial material to show that the financial position of the appellant was so poor there was no other option but to windup the company. As it now stands the appellant has settled its accounts with the petitioner and the secured creditor bank and assert that there are no other liabilities. It is not disputed by the Official Liquidator that there are no other claims received by his Office.
The appellant made out a strong case to set aside winding up order - Application allowed.
-
2022 (12) TMI 98 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , CHENNAI BENCH
Termination of commercial sub-contracts - It has been alleged that the ‘Impugned Order’ was in violation of the principles of natural justice and was passed in the course of daily proceedings, without hearing the `State of Kerala’, who is the owner of the project - HELD THAT:- This Appellate Tribunal do hold that prima-facie the ‘Tribunal’ had sufficient powers to appoint the ‘Inspector’ and therefore we do not find any error on this aspect. Incidentally, it is noted that opportunity was given to both ‘Appellants’ and ‘Respondents’ to give the memo of names to appoint inspector. However, due to non-response from the ‘Appellants’, the ‘Tribunal’ appointed on request of the ‘Respondents’ herein ‘Shri Ravish Kumar’ as an ‘Inspector’.
As regard the contention of the ‘Appellants’ that no opportunity was given to them of being heard and they were denied two weeks period to file objection to report of Shri Ravish Kumar- Inspector appointed by the ‘Tribunal’, this Appellate Tribunal note form the ‘Impugned Order’ that the ‘Respondents’ therein/ ‘Appellants’ herein have availed many adjournments in the matter under one pretext or other - this Appellate Tribunal do not find any error in the Impugned Order with reference to this aspect especially keeping in view that this is only interim measure subject to final CP which is yet to be disposed by the ‘Tribunal’ along with I.A filed by the Appellant on maintainability issue.
As regards the plea that the existence of the Company will be at `Stake’ since the ‘Tribunal’ by the ‘Impugned Order’, has prohibited from withdrawal of any money from revenue collection. This `Appellate Tribunal’ will like to take this fact in to consideration that without regular cash flow available, it would be difficult for the concerned Company to pay Salary and other Operational Expenses. However, looking to various averments made and keeping in mind the ‘Report’ of independent Inspector appointed by the ‘Tribunal’ as per Companies Act, 2013 who has pointed out several irregularities by the ‘Appellants’, it may not be advisable to intervene at this stage.
Appeal disposed off.
-
2022 (12) TMI 60 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , CHENNAI
Oppression and mismanagement of the Respondent No. 1 Company - section 421 of the Companies Act, 1956 - alleged illegal allotment of 984 shares - participation of interested directors in the board meeting for allotment of 984 shares - the conduct of 61st and 62nd AGMs, wherein the resolutions relating to alleged illegal allotment of 984 shares were approved - resolutions relating to Joint Development Agreement relating to the property of R-1 Company were also approved - non-registration of shares transfer - non-payment of dividend - restriction on shareholders’ voting rights under Article 15 of the R-1 Company’s Articles of Association.
Allotment of 984 unsubscribed shares - HELD THAT:- The AoA of R-1 Company indicates the right of the Directors to allot the shares. Article 4 of the AoA stipulates that the shares shall be under the control of the Directors, who may allot or otherwise dispose of the same to such persons on such terms and conditions and at such times, as the Directors think fit, and with full powers to give any person the call on any shares either at par or at a premium and for such time and for such consideration as the Directors think fit - the inquiry report mentions that the R-1 Company provided its comments vide letter dated 28.2.2008 on the said complaints and after receiving the comments and reply from the R-1 Company, the ROC found that ‘that though these 984 shares were issued prior to the period 1965-66 and remaining unsubscribed for a very long period of time, the Board of Directors should not have exercised their power under section 81(1)(d). Since the board has a fiduciary duty in exceptional circumstances like issue of shares towards the members of a company, they should have offered these shares to all the existing shareholders in the ratio of shares held by them under section 81(1) of the Companies Act, 1956’.
It can be concluded the Company has violated the provisions of section 81(1) and 81(1A) of the Companies Act, 1956. As the allotment was done against the provisions of the Companies Act, 1956, the complainant may be directed to approach the company law board under the provisions of Sec.397/398 of the Act for declaring the allotment as null and void.
984 shares which were meant for increase of the company’s capital should have been allotted as prescribed by section 81 of the Companies Act, 1956 to such persons/entities who at the date of offer were holders of the equity shares of the company, in proportion to the capital paid-up of those shares on that date.
The Explanatory Statement merely states the intention of the Company and its Board of Directors, but it does not provide even the slightest indication or explanation on the actual shape and size of the project, total built-up area, its financial features and the basis non which R-1 Company proposed to give 50% of built-up area to the builder/developer with proportionate share in undivided land on which the project would be built. While observing so, we are conscious of the fact that the only asset of the Company i.e. the land plot TS 168 Mangalore, is the subject matter of the joint development project and its failure in the absence of due diligence may result in a severe blow to the future of the Company.
The Hon’ble High Court of Karnataka did not give ad-interim order of injunction for considering agenda item no. 6 in the AGM, relating to Joint Development Agreement, in the Company’s 61 AGM. It is noted that while the issue of selling or disposal of the Company’s land was not considered as being contrary to the clauses of Memorandum of Association, the Hon’ble High Court of Karnataka held that the Directors of the Company will invite tenders and finalise the dealing in a transparent manner. It is also noted that this order dated 6.6.2007 was not appealed against and has, therefore, assumes relevance insofar as the undertaking of the joint development project is concerned - Once 984 shares are allotted to the beneficiaries, this allotment is followed closely by the issue of joint development project raises which certainly question about the intention for allotment of 984 unsubscribed shares. This intention of the company and its Board of Directors is not explained to its members with any coherence, and raises question of transparency and reasonable expectation about growth in business of the Company.
The issue of proxies was enquired into by the ROC, Karnataka and in the report dated 1.5.2008 in other matters as well as about proxies, he has inferred that since the proxies were duly signed by the members, they may not consider a wrongful act. Since there is no way at this stage of verifying the signatures of members signing the proxies. Thus, on the basis of available record, this issue is not held to be an act of oppression or mismanagement.
This Tribunal is of the clear-cut view that the R-1 Company and its Board of Directors subjected its shareholders with acts of oppression and also indulged in mismanagement of the Company’s affairs, while allotting the 984 shares and also in the proposal for the Joint Development Project, culminating in the signing of the Joint Development Agreement. These acts continued since the year 2007 and the Appellants have succeeded in making a clear–cut case for their oppression by the Company and its Board of Directors as well as mismanagement of the Company’s affairs.
Appeal disposed off.
-
2022 (12) TMI 59 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
Restraint on Respondent No.1 i.e. M/s Electrotherm (India) Ltd from holding a Board Meeting of its Directors - Section 421 of the Companies Act, 2013 - HELD THAT:- For deciding the appeal there is no reason to delve into the merit of the case. It is only interpretation of the order passed by this Appellate Tribunal and also by the Hon’ble Supreme Court. In view of final disposal of the appeals by this Appellate Tribunal by its judgement dated 20.01.2022 in which there was no indication for restraining holding of the Boards Meeting, such point was not required to be raised before the NCLT for restraining board Meeting of the Company. Besides this even for the time being if it is considered that this Appellate Tribunal by its order dated 24.5.2021 had directed not to hold further meetings of Board of Directors, the said interim order was only to the next date of hearing i.e. 7.6.2021. Again by order dated 7.6.2021 the interim order was directed to continue till next date but on the next date i.e. on 17.6.2021 this Appellate Tribunal modified the earlier order and only stayed the order in respect of appointment of Siddarth Bhandari as joint signatory of bank account with Shailesh Bhandari. The order dated 17.6.2021 is a specific and unambiguous.
The present appeal is nothing but simply an abuse of process of Court - appeal dismissed.
............
|
