|
Advanced Search Options
Companies Law - Case Laws
Showing 381 to 400 of 14695 Records
-
2022 (11) TMI 934 - CALCUTTA HIGH COURT
Initiation of multiple proceedings by ROC under section 206(4) of The Companies Act, 2013, in respect of the same alleged contraventions - submission of report on the inspection under section 208 of the Act - HELD THAT:- A careful perusal of the provisions relating to inspection, inquiry and investigation of companies under sections 206-210 of the Companies Act, 2013 indicates that the sequential steps required to be taken by the ROC must be followed before the ROC submits the report in writing to the Central Government for further investigation into the affairs of the company if necessary. The stage of filing a report comes only after inspection of books of accounts or conducting inquiry under sections 206 and 207 of the Act. Section 210 is the culmination of this batch of provisions relating to inspection, inquiry and investigation into the affairs of the company where the Central Government may investigate into the affairs of a company if it is of the opinion that it is necessary to do so and on fulfillment of the conditions under section 210(1)(a)-(c).
The contention that the respondents are statutorily precluded from initiating a proceeding under section 206(4) after the impugned inquiry report dated 13th April, 2021 is mis-reading the relevant provisions. Sections 206-210 of the Act do not contain a bar on the Registrar calling for information or conducting an inspection or inquiry if the Registrar comes across additional material warranting the second proceeding under section 206. The presumption that the impugned report dated 13th April, 2021 should be stayed since a parallel inquiry has been initiated in July, 2022 is not borne out from the relevant statutory provisions.
It is also relevant to state that the provisions for inspection, inquiry and investigation are distinct from sections 271-273 dealing with the circumstances in which a company may be wound up by the Tribunal. Section 273 in fact empowers the Tribunal not only to make an interim order but to pass any other orders as it may deem fit subject to the three provisos following section 273(1)(e) of the Act.
This Court is hence not inclined to interfere with or interdict the impugned inquiry report dated 13th April, 2021 - Application dismissed.
-
2022 (11) TMI 807 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
Reduction of share capital - buy back of shares - Special Resolution passed under sections 100-104 of the erstwhile Companies Act, 1956 read with section 52 of the Companies Act, 2013 is in the nature of buy-back shares of non-promoters’ shareholders or not - requirement to follow the various circulars issued by SEBI for providing exit to its non-promoters’ shareholders upon de-recognition of a stock exchange where the Company was earlier listed - correct valuation of shares, protecting the interest of its public shareholders who wanted to voluntarily exit the company, or not - guidelines given by SEBI in its Exit Circular dated 10.10.2016, followed or not.
HELD THAT:- It is noted that sub-section (3) of section 419 of the Companies Act, 2013 provides that if a Single Member Bench comprising of a Single Judicial Member is constituted by President of NCLT in respect of such class of cases or such matters pertaining to such class of cases, then such a Bench would be considered competent to hear such cases. We also note that the Single Member (Judicial) Bench constituted at NCLT, Chennai by the order of the Hon’ble President, NCLT on 27.11.2017 in exercise of powers under section 419 of the Companies Act, 2013, whose copy is attached with the report of the Learned Amicus Curiae, the Single Judicial Member, Bench was entrusted with powers to dispose of cases relating to Companies Act, 2013 and the Insolvency and Bankruptcy Code, 2016 - the Single Judicial Member Bench that heard the Company Petition bearing No. CA/212/66(1)/CB/2017 and passed order dated 18.9.2019 was a validly constituted bench to hear cases under the Companies Act, 2013 by Hon’ble President, NCLT and was fully empowered and competent to hear and dispose of the said company petition.
Whether the Special Resolution passed under section 100-104 of the erstwhile Companies Act, 1956, the buy-back of non-promoters’ shares is a valid modality for providing exit to the shareholders? - HELD THAT:- A perusal of section 100 provides for the Special Resolution for reduction of shares capital in three cases viz. clauses (a), (b) and (c) of sub-section (1) of section 100. Since the share capital of the non-promoters who were to be provided option by the company, sub-sections (a) and (b) are not applicable and sub section (c) makes it clear that any paid-up share capital, which in excess of the wants of the company, can be paid off. Insofar as the present case of providing exit to the shareholders of the company, it is clear that the payoff of any paid up share capital is not in excess of the wants of the company, but due to the reason that this exclusively listed company Reed Relays on Madras Stock Exchange has got delisted because Madras Stock Exchange has been de-recognized - the buy-back of shares of exiting shareholders cannot be done by using the Securities Premium Account reserve of the company, though in the present case, the Securities Premium Account of the company has been used for buy-back of the shares.
Whether the company Reed Relays was obligated to follow various Exit Circulars issued by SEBI for providing exit to its non-promoters’ shareholders consequent to the de-recognition of a stock exchange where the company was exclusively listed? - HELD THAT:- The various Exit Circulars issued by SEBI are mentioned in the application but curiously the application fails to mention Exit Circular dated 10.10.2016, which provides clarity about the procedure for providing exit to public shareholders. Moreover, while this application is made on 9.2.2017, the manner in which the public shareholders have been provided exit option, is through reduction of share capital and not in accordance with the stipulations in the various Exit Circulars of SEBI - It is clear that while the circular dated 10.10.2016 of SEBI had already been issued, which the company should have known, the Company’s Board did not take note of this circular in its Board meeting on 13.10.2016 and followed a procedure that had not been stipulated by SEBI through its Exit Circulars, and which actually meant compulsory buy-back of shares rather than the opportunity of voluntary exit option.
Whether the company's funds could have been used for buy-back of shares of the exiting non-promoter shareholders in view of the guidelines issued by SEBI for providing exit to public shareholders after de-recognition of the Regional Stock Exchange (Madras Stock Exchange in the present case)? - HELD THAT:- It is clear from the procedure outlined to provide exit to investors in Annexure A of the Exit Circular dated 10.10.2016 that the promoters of the company shall acquire shares of such companies from public shareholders by paying them such value determined by the valuer - two facts are clear from these Exit Circulars. viz (i) that the Exit Circulars have been issued in exercise of powers conferred under the Securities and Exchange Board of India Act, 1992 by SEBI to provide exit option to public shareholders of ELCs of a de-recognised Regional Stock Exchange, and (ii) the promoters of the ELCs shall be responsible for making payment of consideration to the exiting public shareholders.
In the present case, where the company has used its Securities Premium Account to make payment to the exiting public shareholders, the procedure adopted is not in accordance with the procedure stipulated for providing exit to public shareholders by SEBI consequent to de-recognition of an exclusively listed company after de-recognition of a Madras Stock Exchange.
The Respondent No. 1 company has not provided voluntary exit option to its public shareholders but resorted to compulsory buy-back of shares under section 100 – 104 of the Companies Act, 1956, when SEBI through its Exit Circulars, particularly the Circular dated 10.10.2016, had provided a very clear and unambiguous modality/ procedure for providing an exit to non-promoter, public shareholders - In view of the infirmities in the procedure employed by Respondent No. 1 company in providing purported exit to its public shareholders through compulsory buyback of their shares, we find that the interests of the public shareholders have not been duly protected and preserved, as was required to be done by complying with the various Exit Circulars issued by SEBI in this regard. The Impugned Order has erred grossly by not considering these factors when passing the Impugned Order.
The impugned order is set aside - Respondent No.1 company shall provide voluntary exit to its non-promoter, public shareholders in the manner outlined in the Exit Circular of SEBI dated 10.10. 2016 - Since it appears that a number of non-promoter shareholders have already availed of the buy-back of shares and accepted demand drafts/warrants in payment, the company shall now engage an independent valuer from amongst the SEBI approved panel and cause a valuation exercise to be undertaken based on financials as they existed on 10.10.2016. Those non-promoter shareholders shall be paid the difference amount if the valuation comes to be more than Rs. 107/- per share. The non-promoter shareholders who have not accepted any payment till now shall be entitled to receive the full value of their shareholding as per the accepted valuation. Further, the non-promoter shareholders shall be given interest @ 9% p.a. on the amount due to them for the period 10.10.2016 till the date of this order. This entire exercise shall be completed within 75 days from the date of this order.
Appeal disposed off.
-
2022 (11) TMI 806 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , CHENNAI BENCH
Oppression and mismanagement - Wilful refusal by Respondent No.1 / ABT Ltd. and its nominees in complying with and give effect to the NCLAT judgment - Rule 11 and 31 of the National Company Law Appellate Tribunal Rules, 2016 - HELD THAT:- The Applicant filed Appeal before this Tribunal in CA (AT) (CH) No. 27 of 2022 aggrieved by the order dated 29.03.2022 passed by the NCLT, Division Bench-II, Chennai in CP No. 25/CHE/2022. The Company Petition No. 25 of 2022 was filed by the 1st Respondent herein under Section 241 & 242 of the Companies Act, 2013 by arraying the Appellants and the Company as Respondents alleging certain acts of oppression and management in the affairs of the Company.
It is to state that the SGAH (Sakthi Global Auto Holdings Limited) on 15.11.2021 issued a requisition under Section 100(2)(a) of the Companies Act, 2013 calling upon the current SACL (Sakthi Auto Component Limited) Board to call an EGM inter-alia to pass resolution for removing the existing Directors who are Sakthi Groups/ABT Nominees from the SACL Board and appointing Additional Aapico Nominee Directors in accordance with articles.
The Applicant categorically stated at para 12 & 13 of the Application that pursuant to passing of the judgment by this Tribunal, the SACL Board, the Company filed Forms with the Registrar of Companies (RoC) in relation to the appointment of Appellant nominee directors and the independent directors and complied with Section 117 of the Companies Act, 2013 and the appointment of the directors reflected on the website of the Ministry of Corporate Affairs - the judgment of this Tribunal dated 02.08.2022 has been complied with in toto with regard to implementation of the resolution passed at the EGM held on 25.01.2022.
This Tribunal is of the view that the Applicants are seeking entirely new reliefs and the said reliefs are in the nature of fresh cause of action and completely out of the purview of this Tribunal - the `Application’ is an attempt of `vexatious act’, without approaching the `Proper Forum’, by exercising its jurisdiction as per `Law’.
Application dismissed.
-
2022 (11) TMI 761 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
Seeking restoration of the name of the Company in the Register of Companies, West Bengal - Section 421(1) of the Companies Act, 2013 - HELD THAT:- The Tribunal has recorded in para 7 of the impugned order, the financial statements for the financial years ending 31.03.2013 to 31.03.2018 which shows that the Company is a going concern, but a look at the financial statements on the other hand shows that the company was not doing any kind of business and further para 8 it has been recorded that the company is not earning any revenue from operations since its incorporation i.e. from 2012-13 to 2017-18, therefore, has not earned any profits and does not have any fixed assets in the company.
Appeal dismissed.
-
2022 (11) TMI 760 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
Winding up of company - Payment of remuneration to the liquidator - Computation of remuneration as per IBC - Section 271(a) and 272(1)(a) of the Companies Act, 2013 - In the instant case does not involve the applicability of the provisions of IBC, 2016 or any of the Rules and Regulations under the Code, 201 - HELD THAT:- The Ld. Counsel for the Appellant filed Notification issued by the Ministry of Corporate Affairs dated 24.01.2020 in exercise of the powers conferred by sub-sections (1) and (2) of section 468 and sub-sections (1) and (2) of section 469 of the Companies Act, 2013 (18 of 2013) and these Rules are known as Companies (winding up) Rules, 2020 wherein Rule 14 provides the appointment of Provisional Liquidator or Company Liquidator and also Part IV deals with cost, etc. in which Rule 188 giving Tribunal's power to fix a fee. The Tribunal mainly considered the provisions of IBBI (Liquidation Process) Regulations, 2016 as amended in 2019 which have quoted in para 5 and 6 of the impugned order and passed the order regarding the fees but the Tribunal has not considered the provisions of Ministry of Corporate Affairs dated 24.01.2020 regarding Companies (winding up) Rules, 2020. As the application was filed winding up provisions of Sections 271(a) and 271(1)(a) of the Companies Act, 2013 seeking winding up of the Company.
The matter is remitted back to the National Company Law Tribunal, Cuttack Bench, Cuttack with a request to hear the parties herein and pass reasoned orders after considering the provisions of Companies (winding up) Rules, 2020 issued by the Ministry of Corporate Affairs vide Notification dated 24.01.2020 within eight weeks from the date of receipt of this judgment - Appeal disposed off.
-
2022 (11) TMI 759 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
Maintainability of appeal - aggrieved person - Appeal against the consent order - Oppression and Mismanagement - Appellate Jurisdiction of this Tribunal under section 421 of the Companies Act, 2013 - HELD THAT:- Fact remains that on going through the record, it appears that on earlier occasion also the same allegation was made that this Appellant had taken a loan of Rs. 35 Lakh though it was treated for personal use, but it was shown, in the joint name of the Appellant and the Company. It is also not in dispute that till date whatever error was committed in the loan account of the Bajaj Finance, the error has not been got removed from the Bajaj Finance.
Ld. Counsel for the Appellant before the Ld. NCLT, stated in specific term that on instruction of his client, he made submission for deposit of the said amount. Of course, during the hearing of this appeal, it was submitted by the Ld counsel of the Appellant that before the NCLT without proper instruction of the Appellant, his counsel had made said submission and as such, such submission may not come in the way of preferring the present appeal. On being asked Ld. Counsel for the Appellant admitted that he had not filed any petition before the Ld. NCLT as to whether the Ld. Counsel, had made submission without instruction of the client. Ld. Counsel for the Appellant accepts that no proper application has been filed before the NCLT with an allegation that his counsel without instruction from his client, has made such submission.
If an authorization is given to a counsel and on authorization such submission is made by the counsel, the integrity of the counsel may not be questioned that too without apprising the concerned court. Such submission is not permissible to be raised before the Appellate Court - it is very much clear that only a person aggrieved with an order, can file appeal. Further consent order cannot be assailed in appeal. In this case, on perusal of para 42 of the impugned order which is quoted herein above, there is no dispute that the Appellant can be said to be aggrieved by the said order. Further the order impugned is a consent order. If the Appellant is of the view that his counsel had made incorrect statement before the NCLT, he would be at liberty to approach the NCLT, but he may not be permitted to raise such issue before this Tribunal.
Appeal dismissed.
-
2022 (11) TMI 758 - NATIONAL COMPANY LAW TRIBUNAL , CHANDIGARH BENCH
Sanction of Scheme of Amalgamation - seeking directions for dispensing with the meetings of Equity Shareholders, Secured and Unsecured Creditors of the Applicant Companies - HELD THAT:- The Scheme contemplated between the petitioner companies, appears to be prima facie in compliance with all the requirements stipulated under the relevant Sections of the Companies Act, 2013. As the observations from the Statutory Authorities have been duly addressed by the Petitioner Companies and since all the requisite statutory compliances have been fulfilled, this Tribunal sanctions the Scheme of Amalgamation attached as Annexure - A1 with the petition.
Petition allowed.
-
2022 (11) TMI 705 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
Anti-competitive conduct - allegation of bid rigging was in the tenders invited by the Department of Agricultural, Govt of UP for soil sample testing in respect of e-tender - contravention of provisions of Section 3(1) read with 3(3)(d) of Competition Act - HELD THAT:- The Commission has correctly and legally held the appellant responsible for violation of Section 3(3)(c) and 3(3)(d) reading with Section 3(1) of the Act and there is no error in respect of order passed under Section 27(a) whereby the appellant was directed to cease and desist from such act from indulging in the practices which were found in contravention of the provisions contained in Section 3(3)(c) and 3(3)(d) read with Section 3(1) of the Act. So far as imposition of penalty is concerned it is evident that appellant was a proprietor firm. Of course imposition of penalty was entirely within the discretion of the CCI and in respect of exercising discretion same may not be interfered with. However, it is also settled that discretion is to be exercised not indiscreet manner.
In peculiar facts and circumstances of the present case particularly the fact that the appellant was found by the Commission that he being a Member of the Cartel the appellant was providing cover for the success of the bidder, Yash Solutions, it would be difficult to consider penalty on the basis of relevant turn over and as such total turn over which has been considered by the Commission may not termed as erroneous. However, considering the fact that the appellant was a proprietorship firm the Commission may consider to reduce the percentage of average income of the appellant.
While approving the order of Commission in respect of holding the appellant guilty under Section 3(3)(c) and 3(3)(d) read with Section 3(1) and order passed under Section 27(a) regarding cease and desist order it is felt appropriate to remit back the matter to Commission to reconsider imposition of penalty which has been imposed under Section 27(b) of the Act - appeal disposed off.
-
2022 (11) TMI 702 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
Seeking restoration of name of the Company in the Register of the Companies - shell Company - Section 252(1) of the Companies Act, 2013 - HELD THAT:- After hearing the parties and going through the pleadings made on behalf of the parties, the Appellants have neither fact in issue nor question of Law and any ground raised with the legal provisions does not assail the finding of the Tribunal wherein the Tribunal held that the Appellant Company appears to be a shell Company. Therefore, the Impugned Order dated 11.12.2020 passed by the National Company Law Tribunal (New Delhi Court-III) is hereby affirmed.
Appeal dismissed.
-
2022 (11) TMI 649 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, PRINCIPAL BENCH , NEW DELHI
Seeking restoration of name of the company in the Register of Companies - non-filing of the return/ statement of account before the RoC - Section 252 (3) of the Companies Act, 2013 - HELD THAT:- In the Companies Act, 1956 the power for striking off the company was primarily incorporated in Section 560 of the Act - In the present case it is noticed that under Section 560 (1), 560 (2) and 560 (3) notices were issued due to non-filing of the return/ statement of account before the RoC. It has not been disputed that from the Appellant side any steps were taken to cure the defect enabling the Registrar to pass an order for withdrawal of the notice. On the contrary after waiting for long time finally on 28.11.2011 exercising power under sub Section (5) of Section 560 of the Companies Act, 1956 the Appellant/Companies name was struck off and the Company was directed to be dissolved.
On going through the order dated 13.11.2014 it is difficult to decipher as to whether the Appellant in terms of provision contained in Section 252 (3) of the Companies Act, 2013 had given any indication that at the time of striking off the Company i.e. as on 28.11.2011 the Appellant/Company was carrying on any business or was in operation nor there was any otherwise situation to justify the restoration of name of the Company. It is true that this Tribunal is taking lenient view in Appeals filed against the refusal of restoration of the Company but if such leniency is adopted in each and every Appeals certainly the provision contained under Section 248 of the Companies Act, 2013 may be termed as redundant.
In the present case considering the fact that dispute which is being raised before this Appellate Tribunal has finally been set at rest by Hon’ble Supreme Court there is no reason to pass a different order than to dismiss this Appeal - appeal dismissed.
-
2022 (11) TMI 509 - NATIONAL COMPANY LAW TRIBUNAL , INDORE BENCH
Oppression and mismanagement - siphoning off of funds - meetings of the Board of Directors or that of the shareholders of the company have been properly convened or not - HELD THAT:- As on today, that is the fact is that the right issue has been published and additional shares are allotted to increase the share capital. We do not wish to reverse that. We make it clear that the pattern of share which might have changed in between the petitioner and the respondent inter-say shall be subject to outcome of main petition.
In order to safeguard interest of all shareholders of the company, we direct the fixed asset of the company shall not be alienated or disposed of, but at the same time to keep the company to go on, the directors of the company may raise the loans against fixed assets as per the provisions of Section 180 of the Companies Act, 2013.
Application disposed off.
-
2022 (11) TMI 508 - NATIONAL COMPANY LAW TRIBUNAL , INDORE BENCH
Composite scheme of merger - Seeking for dispensation of the meeting of shareholders and creditors of both the applicant companies - Section 230-232 of the Companies Act, 2013 - HELD THAT:- There is no secured creditor in the applicant transferor company as per the CA certificate and the only creditor of the applicant transferee company is the holding company of the applicant transferee company. Further, consent affidavits from shareholders of both the applicant companies are received and the same is placed on record. As a result, no meetings of secured/unsecured creditors of both the applicant companies is required to be convened. Further, the meetings of the shareholders of both the applicant companies are dispensed with considering the consent affidavit furnished by the applicant companies.
Application allowed.
-
2022 (11) TMI 350 - DELHI HIGH COURT
Seeking grant of bail - SFIO - offences under Companies Act, 2013 and offences under the IPC. - extension of remand of judicial custody - applicants submits that the custody of the applicants was illegal between 31.05.2022 to 06.08.2022, inasmuch as, there was no judicial order of remand but a mere endorsement on the warrant was made which does not fulfill the legal requirement of a valid remand order.
Whether on 31.05.2022 a speaking order was required to be passed and further the remand period beyond more than 15 days can be accepted to be legal? - HELD THAT:- It is settled principle of law that courts should not place reliance on decisions without discussing how the factual situation of the case they are asked to adjudicate upon fits the facts situation of the decision on which reliance is placed. Circumstantial flexibility, one additional or different fact may make a world of difference between the conclusions to be reached in two cases. Observations of the courts are neither to be read as Euclid’s Theorems nor as provisions of the statute, and are never to be taken out of contexts. Courts primarily interpret statutes, they do not interpret judgments. Each case depends on its own facts and a close similarity between one case and another may not be enough.
In the case of Harshad S. Mehta v. CBI [1992 (10) TMI 271 - DELHI HIGH COURT] decided by this court, the question whether remand under Section 167(2) of Cr.P.C. has to be taken after every 15 days or not and whether after the initial remand of 15 days the accused can be remanded in perpetuity subject of course to the outer limit of 60/90 days was one of the issues. This Court in paragraph No. 22 of the said decision has held that in no case the Magistrate can authorise the detention beyond 90 days or 60 days as the case may be. But even beyond 15 days and up to the period of 60 days, the remand has to be taken of the accused 15 days each time.
In the case in hand the applicants were taken into custody on 21.03.2022. The Status Report indicates that the investigation with respect to other accused persons is not complete in all respects. An apprehension has been raised by the prosecuting agency on the basis of the role of the respective applicants that the applicants being closely associated with various individuals and have considerable influence over most of the witnesses who were working under the applicants. Specific roles of the applicants have been detailed in respective Status Reports - It is thus seen that at this stage, it cannot be said that the constitutional right of the applicants for speedy trial is infringed and on the contrary this court is not satisfied that there are reasonable grounds to believe that the applicants are not guilty of the offences alleged against them.
The applicants are not entitled for grant of bail even on merits - Bail application dismissed.
-
2022 (11) TMI 349 - NATIONAL COMPANY LAW TRIBUNAL , CHENNAI BENCH
Seeking approval of scheme of Capital Reduction - Section 66 of the Companies Act, 2013 - HELD THAT:- The Certificate issued by the Statutory Auditor confirming that the Applicant Company has no default in arrears of repaying deposits has been annexed at Annexure 8 to the Application. The affidavit of the Managing Director and the Director of the company verifying that there are NIL Secured and NIL unsecured creditors in the company is placed as Annexure-6 of the Application typeset.
In consonance with the provisions of this Act as well as the rules framed thereunder, the Applicant Company amongst other documents, have also filed a certificate dated 28.07.2022 from the Statutory Auditor issued to the effect that the accounting treatment for the Reduction of Share Capital is in conformity with the Accounting Standards with respect to the same as specified by the Central Government read with Section 133 of the Companies Act, 2013.
The Applicant Company is directed to give notice of the instant Application within a period of 7 days from the date of receipt of this order to the (i) Central Government, (ii) the Registrar of Companies having jurisdiction over the files of the Applicant Company (iii) SEBI and any other relevant sectoral regulators - Application allowed.
-
2022 (11) TMI 168 - KERALA HIGH COURT
Scope of writ jurisdiction - statutory violation - rejection of the nomination of the writ petitioners for the directorship of the appellant under Section 160 of the Companies Act, 2013 by the appellant bank - HELD THAT:- Section 1(4)(a) of the Companies Act, 2013 makes it clear that it applies to companies incorporated under the Act 2013 or under any previous company law. Clause (c) of Section 1(4) makes it clear that the provisions apply to the banking companies, except in so far as the said provisions are inconsistent with the provisions of the Banking Regulation Act, 1949.
It is true, from the provision of Section 160 of Act 2013, that definite parameters are prescribed concerning how an application for Directorship is to be submitted and considered. Section 178 of Act 2013 deals with the Nomination and Remuneration Committee and Stakeholders Relationship Committee. Sub-section (1) thereto specifies that the Board of Directors of every listed company and such other class shall constitute a Nomination and Remuneration Committee consisting three or more non-executive Directors out of which not less than one half shall be independent Directors.
On a conjoint reading of Section 160, Section 178 of the Companies Act, 2013 and Rule 13 of the Rules 2014, it is evident that a clear cut procedure is prescribed in so far as the notice of candidature is concerned. Whatever that be, the primary question to be considered is whether the rejection of nomination and election to the Director Board of the appellant company, a private banking company, has any public law element in order to consider the alleged violations exercising the powers conferred under Article 226 of the Constitution of India.
The prayer sought for in petition for complaints filed before the RBI as well as SEBI against its nominee Directors, are not at all connected or related to the fundamental issue raised in the writ petition on account of the rejection of nomination. It is also stated that the matters with respect to Exts. P6 and P7 are not at all germane to decide the issue with regard to the rejection of the nomination of the petitioners.
Even though learned Senior Counsel for the writ petitioners Sri. P. Chidambaram contended that from the website of the appellant Bank, it could be gathered that there are only two Directors in the Nomination and Remuneration Committee, learned Senior Counsel appearing for the appellant Bank Sri. Rafiq Dada submitted that no such contention is raised before the writ court and further that the present members of the Nomination and Remuneration Committee limited to two is on account of various factors and developments that have taken place subsequent to the rejection of nomination of the petitioners and the same would not have any bearing to the issue to be decided in the appeal - there are force in this contention.
Whether a writ in the matter of rejection of nomination can be issued against the appellant Bank? - HELD THAT:- It may be true that the Dhanalakshmi Bank, though a private Bank, may be discharging certain duties with respect to receipt of deposits and issue of loans and other financial activities. But the said duty cast upon a private Bank like the appellant, even assuming it as a public duty, has nothing to do with the election to the Director Board of the banking company, whose activity is confined to the realm and control of the shareholders of the appellant company.
The appellant Bank is able to satisfy this Court that the rejection of the nomination for the post of Directorship has nothing to do with the public element or public duty of the appellant company or its Board of Directors or the Nomination and Remuneration Committee - There are no hesitation to say that interference is required to the interim order of the learned Single Judge in view of the fact that the issue raised in the writ petition has no public element involved, and the issue of rejection of nomination has nothing to do with the public duty and public function if any discharged by the Bank with respect to the other commercial and financial banking activities of the Bank concerning the public.
The writ petitions are dismissed as being not maintainable under law.
-
2022 (11) TMI 167 - GUJARAT HIGH COURT
Dissolution of the company - Section 481 of the Companies Act, 1956 - HELD THAT:- On perusal of the record of this report and in the facts of this case and considering the ratio laid down by the Hon'ble Apex Court in the case of MEGHAL HOMES (P.) LTD. VERSUS SHREE NIWAS GIRNI KK. SAMITI [2007 (8) TMI 447 - SUPREME COURT], the report deserves to be accepted.
Supreme Court of India in case of MEGHAL HOMES (P.) LTD. VERSUS SHREE NIWAS GIRNI KK. SAMITI has held that When the affairs of the Company had been completely wound up or the courts find that the official Liquidator cannot proceed with the winding up of the Company for want of funds or for any other reason, the court can make an order dissolving the Company from the date of that order. This puts an end to the winding-up process.
The Company, named, M/s. ARM Polymers Limited (In Liquidation) is hereby dissolved under Section 481 of the Act and the Official Liquidator attached to this Court stands discharged and is relieved as liquidator of M/s. ARM Polymers Limited (In Liquidation). The official liquidator is also permitted to make the payment of Rs. 1500/- to M/s. P.C. Rathod & Co., Chartered Accountants towards preparation of Auditor’s Certificate from account of the company in liquidation.
The report is allowed.
-
2022 (11) TMI 58 - MINISTRY OF CORPORATE AFFAIRS OFFICE OF THE REGISTRAR OF COMPANIES
Failure to appoint Whole time Company Secretary within a period of six months from the date of vacancy of previous Whole-time Company Secretary, who had resigned - Section 203 of the Companies Act 2013 read with Rule 8A of Companies (Appointment and Remuneration of Managerial Personnel) Rules, 2014 - HELD THAT:- The Company failed to appoint a Whole time Company Secretary from 20.09.2021 till 20.01.2021 with a delay of 122 days thereby contravening the provisions of Section 203 of the Companies Act, 2013. As per Section 203(5) of the Companies Act, 2013.
Further, Section 203(5) of the Companies Act, 2013 prescribes a penalty of Rs. 50,000/- and Rs. 1,000/- per day for continuing offence for every director and KMP - appointment Key Managerial Person is the collective responsibility of the entire Board. Further, a Whole-time Director is included in the definition of “Officer in Default” and Key Managerial Personnel as per Sec. 2(60) r/w Sec. 2(51) and thus the MD and Wholetime Directors are liable for penalty.
The penalty is imposed on the Company and its Officers in default as per table below for violation of provisions of Section 203 of the Companies Act, 2013 for delay of 122 days. It is opined that, the penalty is commensurate with the aforesaid failure committed by the Notice.
Application disposed off.
-
2022 (10) TMI 1226 - ORISSA HIGH COURT
Striking out the name of the company - HELD THAT:- The issue is covered by the decision in the case of LEKA CONSULTING SERVICES PRIVATE LIMITED VERSUS NATIONAL COMPANY LAW TRIBUNAL CUTTACK AND ANOTHER [2021 (12) TMI 1484 - ORISSA HIGH COURT] where it was held that Petitioner might approach the Tribunal to contend that impugned order be amended on the Tribunal not having allowed his client to adduce evidence of the company being in operation, in context of the report having said that his client may be put to strict proof. If the Tribunal is satisfied, it may amend impugned order.
Application disposed off.
-
2022 (10) TMI 1083 - DELHI HIGH COURT
Possession of suit property - recovery of arrears of rent - family company - real beneficiary / lifting of corporate veil - relationship of lessor and lessee between the parties or not - Order XII R-6 read with Order XIIIA of the Code of Civil Procedure, 1908 - HELD THAT:- While examining an application under Order XII Rule 6 of the CPC, the court has to see whether clear and categorical admissions has been made on behalf of the defendant on the basis of which a decree can be passed in favour of the plaintiff.
As per the Lease Agreement, a sum of Rs.2,50,000/- per month was payable as rent. As per the defendant firm, from the time of execution of the aforesaid lease on 1st April, 2007, no rent was ever paid by the defendant firm to the plaintiff company. A perusal of the relevant extracts of the profit and loss account and balance sheets of the plaintiff company from the year 2007 to the year 2014 would only show that some amount of rental income was received/receivable by the plaintiff company - the accounts of the defendant firm that have been placed on record pertain to the years prior to execution of the Lease Agreement. Therefore, none of these documents show that any rent was being paid or was payable by the defendant firm to the plaintiff company under the Lease Agreement.
The plaintiff company was incorporated as a family owned company with the two grandchildren of late Sh. Sanmukh Singh Batra being the only shareholders and directors. Subsequently, disputes arose between the parties and it appears that Sanmukh Singh Batra sided with one of the grandsons, resulting in the shares of the plaintiff company and the control of the plaintiff company being transferred in favour of Jaspreet Pal Singh Batra, to the exclusion of Prabhdit Singh Batra - From the accounts of the plaintiff company that have been placed on record, it is evident that the plaintiff company was not engaged in any business activity and was only an asset holding company owned by the family. The only income shown of the plaintiff company is from lease rental. Further, the directorship and majority shareholding of the plaintiff company has, at all times, been with the family members of late Sh. Sanmukh Singh Batra.
In view of settled principles of law with regard to Order XII Rule 6 of the CPC, no case is made out for passing of a judgment on the basis of admission - application dismissed.
-
2022 (10) TMI 1015 - NATIONAL COMPANY LAW TRIBUNAL , KOCHI BENCH
Seeking permission to issue further redeemable preference shares for a period of 5 years equal to the amount due - Section 55 (3) of the Companies Act, 2013 - HELD THAT:- An examination of the contents of the present petition shows that it meets the criteria laid in the Section and Rule 69 of NCLT Rules, 2016. The Petitioner has filed Form-MGT 14 before the ROC which is not disputed by the ROC. Therefore, the present Company Petition deserves to be allowed and the relief sought for by the Petitioner be granted permitting the Petitioner Company to issue further redeemable Preference Shares for a period of 5 years equal to the amount due, including the dividend thereon, in respect of the unredeemed preference shares and allow to treat the unredeemed preference shares shall be deemed to have been redeemed.
This Company Petition is hereby Allowed.
............
|
