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Companies Law - Case Laws
Showing 401 to 420 of 14695 Records
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2022 (10) TMI 1014 - NATIONAL COMPANY LAW TRIBUNAL , GUWAHATI BENCH
Sanction of Scheme of Amalgamation - Sections 230 to 232 of the Companies Act, 2013, read with the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - HELD THAT:- Perusing the records, documents annexed to the application and consent affidavits filed on behalf of the shareholders of the Transferor Companies and the Transferee Company to approve the proposed Company Scheme in the instant proceedings, the requirement of convening and holding of meetings of the equity shareholders of the applicant Companies is dispensed with. In view of the fact that there are NIL Creditors in the Transferor Companies, and the consent affidavit on behalf of the creditors of the Transferee Company, the requirement of convening and holding separate meeting of the Creditors of the Applicant Companies is also dispensed with.
The present Company Application deserves to be allowed - the scheme is approved - application allowed.
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2022 (10) TMI 963 - KARNATAKA HIGH COURT
Fraud - minority shareholders or not - applicability of Section 439 of the Companies Act - submission is that once an offence has been designated to be cognizable under Sub-section 6 of Section 212 of the Act, the provision of Section 439 of the Act that deals with non-cognizable offences would not be applicable and the procedure prescribed under Section 212 of the Act has to be strictly followed - initiation of proceedings under Section 447 of the Companies Act, 2013.
Whether a shareholder, minority or otherwise, can initiate proceedings before the Magistrate by himself or herself for an alleged offence under Section 447 of the Companies Act, 2013? - HELD THAT:- Section 439 of the Companies Act, which has been reproduced herein above, makes all the offences under the Companies Act non-cognizable and Sub-Section (3) of Section 439 provides that a complaint could be filed by the Registrar or a Shareholder of the Company or a person authorized by the Central Government in that behalf. Thus, any offence being non-cognizable, a complaint could be filed by the Registrar, Shareholder of the Company or a person authorized by the Central Government - Sub-Section (6) of Section 212 of the Act specifically deals with the offences covered under Section 447 of the Act and makes it clear that no Court shall take cognizance unless a complaint is made by the Director, Serious Fraud Investigation Office (SFIO) or the officer of the Central Government authorized by a general or special order in writing in this behalf by that Government. Thus, an offence under Section 447 of the Act is given special treatment in terms of Sub-Section (6) of Section 212 of the Act. It is only that procedure which is prescribed under Sub- Section (6) of Section 212 of the Act which would apply.
It is held that a shareholder, minority or otherwise cannot initiate proceedings before the Magistrate by himself or herself for an alleged offence under Section 447 of the Act.
Whether the offence under Section 447 of the Companies Act, 2013 is a cognizable offence or a non-cognizable offence? - HELD THAT:- Sub-Section (6) of Section 212 of the Act is clear that an offence under Section 447 of the Act is cognizable and the method of taking cognizance is also provided. Thus, it is held that an offence under Section 447 of the Act is a cognizable offence.
What is the remedy available to a shareholder in the event of the shareholder alleging fraud requiring the initiation of proceedings under Section 447 of the Companies Act, 2013? - HELD THAT:- It is held that a shareholder cannot file any proceedings before the Magistrate for an offence under Section 447 of the Act. However, such a shareholder is not remediless.
In the event of after investigation, it was proved that the business of the Company is being conducted with an intent to defraud its creditors, members or any other persons or otherwise for a fraudulent or unlawful purpose, or the Company was formed for any fraudulent or unlawful purpose, then every officer of the Company who is in default and the person or persons concerned in the formation of the Company would be punishable for fraud in the manner provided under Section 447 of the Act - for a shareholder to avail a remedy under Section 447 of the Act such shareholder essentially needs to go through the procedure under Section 213 of the Act and in the event of a report being submitted by the Inspector to the Tribunal of there being a fraud either the Shareholder or the Tribunal could refer the report to the SFIO who can then follow the procedure provided under Section 212 of the Act and initiate criminal proceedings against the offenders for an offence under Section 447 of the Act.
Does the order passed by the learned Magistrate in the present matter suffer from legal infirmity requiring interference? - HELD THAT:- Having come to a conclusion that no proceedings could have been initiated by a Shareholder by himself under Section 447 of the Act and that the requirement under Sub- Section (6) of Section 212 of the Act was required to be complied with. The learned Magistrate without having gone through and appreciated the provisions of Sections 212, 213, 439 and 447 of the Act, the order of cognizance is contrary to the applicable law and therefore, suffers from legal infirmity requiring this Court’s interference.
The Criminal Petition is allowed.
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2022 (10) TMI 962 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
Legality of Annual general Meeting sought to be convened - Section 96 of the Companies Act, 2013 - HELD THAT:- The main petition is pending before the Tribunal for consideration. The instant Appeal is disposed off with a request to the National Company Law Tribunal, Cuttack Bench, Cuttack to expedite the matter and dispose of at an early date by considering all the issues raised by the parties including issue of Annual General Meeting.
The instant Appeal is disposed of.
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2022 (10) TMI 935 - BOMBAY HIGH COURT
Jurisdiction of Court to entertain the writ petition - Jurisdiction of ROC to deal with complaint - effect of the pending Commercial Suit No.584 of 2017 on the complaint - Non-issuance of duplicate certificate - non-payment of dividend - non-receipt of notice for general meeting - dispute sub-judice before the High Court of Judicature at Bombay - HELD THAT:- In case of Damomal Kausomal Raisinghani vs. Union of India & Ors. [1965 (12) TMI 154 - BOMBAY HIGH COURT], a co-ordinate Bench of this Court held that the place where the consequences of the impugned order fell on the Petitioner would be a place where at least the cause of action in part would arise.
The Petitioners have specifically averred that the Petitioner No.1 would be able to trade with the shares in Mumbai and therefore, impugned order of ROC has affected Petitioners’ rights in Mumbai. The said averments have remained uncontroverted. Thus, it is clear that the consequence of the impugned order fell on the Petitioner at Mumbai where atleast the cause of the action in part has taken place - there is no substance in the contention raised by the Respondents that this Court has no jurisdiction to deal with this Writ Petition.
Whether ROC has jurisdiction to deal with complaint dated 1st December 2015 filed by the Petitioner No.1? - What is the effect of pending Commercial Suit No.584 of 2017 on the said complaint dated 1st December 2015. 20? - HELD THAT:- The factual position on record clearly show that although Petitioner No.1 remained absent when the hearing of the said complaint was scheduled on 28th November 2018 as they have not been served with the notice of hearing but all along they requested for another date of hearing and without granting hearing, order was passed. It is further significant to note that this is not a case where after 28th November 2018 i.e. after scheduled date of hearing the ROC has immediately passed the impugned order. In fact, the impugned order has been passed after a period of four months after the said scheduled date of hearing. Thus, there was no impediment for ROC to grant hearing to the Petitioner No.1.
It is clear that the impugned order is passed without giving hearing to the Petitioner No. 1 and without following principles of natural justice. The Petitioner has requested for fresh hearing and Petitioner No.1 has given valid reason for the absence. The factual position on record clearly demonstrates that the Petitioner No.1 from time to time requested for hearing even prior to 28th November 2018 and immediately after 28th November 2018 also. Thus, the impugned order is liable to be quashed and set aside on this ground alone.
The impugned order is liable to be quashed and set aside - Petition disposed off.
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2022 (10) TMI 934 - NATIONAL COMPANY LAW TRIBUNAL , HYDERABAD BENCH
Right of the Shareholder / Member of Company - it is alleged that the main petition do not possess the minimum qualification criteria prescribed under Section 244 of the Companies Act for filing the main CP and none of the prayers sought for by the Respondents 1 to 4 falls under the ambit of Section 241 of the Companies Act.
Whether the Company Petitioners are not the members of the 1st respondent? - If so, whether the Company Petition filed by them u/s. 241 of the Companies Act is not maintainable under law?
HELD THAT:- Since it is settled law that a shareholder who is not a member cannot maintain an application under section 241 of the Companies Act 2013, it is imperative for the company petitioners to establish that they are the members of the 1st respondent Company as on the date of filing this Company Petition. In so far as the case on hand is concerned the Company Petitioners have claimed that the respondents 2 & 3 in Company Petition have agreed to sell Rs. 9,68,500/- fully paid-up equity shares of Rs. 10/- each, aggregating 76.09% of the respondent company to the 1st petitioner under the sale purchase agreement dated 18.05.2010. The mandatory compliances for transfer of such shares, namely, executing share transfer form, entering names of the transferees in the share register and then applying to the company to register the name in place of the previous holder of the share has neither been pleaded nor any record of such actions action been placed.
The right of a transferee of a share is only to call upon the company to register his name and no more. No rights arise till such registration takes place. The completion of the transaction by having the name entered in the register of members relates it back to the time when the transfer was first made. The company recognises no person except one whose name is on the register of members, upon whom alone calls for unpaid capital can be made and to whom only the dividend declared by the company is legally payable.
Admittedly, no record showing the names of the Company Petitioner in the Registers of the company or pendency of such request before the concerned authority or Tribunal has been placed in the impugned order - the status of the petitioners as members of the respondent Company remains un-established. Being a non-member, the respondents in this IA have no local standi, to maintain a Petition under section 241 of the Companies Act 2013.
The Company Petitioners have no local standi to maintain the Petition u/s. 241 of the Companies Act - Application allowed.
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2022 (10) TMI 891 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH
Oppression and mismanagement - misappropriation of funds - Section 421 of the Companies Act, 2013 read with Section 241-242 of the Companies Act, 2013 - HELD THAT:- In special audit carried out by Vikas Dahiya and Company, Chartered Accountants, New Delhi vide its Special Audit Report dated 24th May, 2017 has observed multiple irregularities during the Financial Year 2013-14 to 2016-17. The auditor has also observed that huge payments were released in cash without supporting vouchers, receipts and payment amounting to Rs. 3.62 Crore has been made for which no satisfactory explanation was given by the Appellant. Illegal encashment of cheques, direct transaction of the funds, non-compliance of statutory duties of the Respondent No.1 Company etc came to the light and the same had happened under instruction of the Appellant. There are irregularities and misappropriation of funds including non-payment of statutory dues and the special audit has also recommended to carry an extensive forensic audit to find out the magnitude of misappropriation of funds.
There was no case of Oppression & Mismanagement as alleged out by the Appellant in present Appeal as well as in the Application filed before the Hon’ble NCLT, New Delhi vide CP-219/241-242/ND/2018 and the Adjudicating Authority rightly passed the detailed order dated 03.09.2021 after going through the entire materials placed on records and as such no irregularities were found in convening an Extra-Ordinary General Meeting which was requisitioned at the instances of a shareholder and a Board Meeting is not a pre-requisite as settled principles under Companies Act, 2013 - the Board Meetings were convened and suggested appropriate actions including convening of ‘Extraordinary General Meeting’ (EGM) based on requisition of shareholder to remove the Appellant from the Directorship of the company vide Special Notice dated 16.05.2018 and the Board has intimated vide letter dated 23.05.2018 to the concerned Director to defend the various allegations raised in the special notice but no cognizant explanation was offered against the discrepancies in the accounts of the Respondent No.1 company.
There are no irregularity in the impugned order - appeal dismissed.
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2022 (10) TMI 813 - NATIONAL COMPANY LAW TRIBUNAL , AHMEDABAD BENCH
Reduction of shares of only one shareholder - Seeking cancelling/ extinguishing fully paid up equity shares - Section 66 read with National Company Law Tribunal (Procedure for Reduction of Share Capital) Rules, 2016 - HELD THAT:- The Reduction of the Share Capital in present case is approved by the Shareholders of the Company unanimously by way of a Special Resolution. It is settled law that the question of reduction of Share Capital will be treated as a matter of domestic concern i.e., it is the decision of the majority which prevails. If majority by Special Resolution decides to reduce the Share Capital of the Company, it also has the right to decide as to how this reduction should be carried into effect. In the instant case, admittedly, the reduction of Share Capital is approved unanimously by the Shareholders by way of a Special Resolution.
Perused documents on record, as there are no adverse observation made by the Regional Director, Registrar of Companies and the Income Tax Department and in view of all necessary compliances for making the proposed reduction, also no objections from creditors, shareholders or any other stakeholders received, this application deserves to be allowed.
The reduction of equity share capital resolved on 25.02.2022 by the special resolution is hereby allowed - Application allowed.
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2022 (10) TMI 744 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
Scheme of arrangement - Direction to Appellant Company to convene its Shareholders meeting in the matter of scheme of arrangement - Sections 230 to 232 of the Companies Act, 2013.
Whether in a case where there is a scheme of arrangement between the wholly owned subsidiary and the holding company, and whether the meeting of the shareholders / creditors of the holding company or Transferee Company can be dispensed with, since in case there is no dilution in the shareholding of the shareholders of the Transferee Company and even post amalgamation the net-worth of the Transferee Company remain highly positive?
HELD THAT:- It is an admitted fact that the Appellant is a Transferee Company and the Transferor Companies are wholly-owned subsidiary of the Appellant Company. The total shareholding i.e. (100% shares) of Transferor Companies are held by the Transferee Company. In the affidavit, the Appellant categorically mentioned that post amalgamation the net-worth of the Transferee Company will remain highly positive and the proposed scheme of arrangement will not result in any dilution in the shareholding of the shareholders of the Transferee Company. The rights of the shareholders of the Transferee Company are not affected as the proposed scheme does not involve any reorganisation in either the shareholding or debt position of the Transferee Company.
This Tribunal considering the submissions of the Appellant that the Appellant Company is a holding company and no new shares are being issued, the rights of the shareholders of the Appellant Company are not affected, the scheme does not involve reorganisation of the share capital and the net-worth of the Appellant Company post amalgamation would remain highly positive - this Tribunal is of the view that the NCLT erred in not considering the decisions of this Tribunal which forms judicial precedents. We are of the view that rejecting the prayer of the of the Appellant is non-est and without application of mind.
Appeal allowed.
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2022 (10) TMI 705 - GUJARAT HIGH COURT
Seeking consideration of preferential claim - Section 530 (1) (a) of the Companies Act, 1956 - HELD THAT:- Having considered the submissions by learned advocates for the parties and the report of the Official Liquidator, the Official Liquidator is directed to consider the claim of Gujarat Commercial Tax (GST) as preferential claim in light of claim verification report submitted by M/s. Naimish Shah & Company, Chartered Accountants.
The Official Liquidator is permitted to encash premature FDRs to disburse amount to the secured creditor of the company in liquidation - Application allowed.
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2022 (10) TMI 704 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
Anti-competitive practices in violation of Section 3(1) and 3(3)(b) of Competition Act, 2002 - sub-section (1) and (2) of Section 53B of the Competition Act, 2002 - Levy of penalty - HELD THAT:- The 1st Respondent herein, find evidence against the Appellant and the 6th Respondent and observed that it has played a significant role in the organization of the press meet and the participation of the 6th Respondent cannot be said to be in his personal capacity and observed that he was the President of the Appellant during the relevant period of time. The commission also takes note the contents in the press meet held on 01.03.2017, wherein the opposite parties participated and actively advocated the cause of condemning dubbed Kannada Films. Further, the commission observed that the press meet was used as a platform to give coverage to the protest by the opposite parties. One of the contentions of the Appellant is that the cause of the Appellant is to promote Kannada literature and to ensure livelihood of artists in Kannada film industries and not otherwise.
However, from the sequence of events and from the evidences on the record that the conduct of the Appellant and the opposite parties is anti-competitive thus, resulted in limiting production and supply of dubbed movies and their screening within the State of Karnataka which directly hits the provisions of Section 3(1) read with Section 3(3)(b) of the Act.
This Tribunal is of the view that the order passed by the 1st Respondent dealt all the issues including the evidences led by the Director General and other evidence by the Commission itself. Having dealt the issues meticulously on the basis of the evidence on record, this Tribunal find that there is ample evidence to suggest the existence of anti-competitive conduct by the Appellant and the Opposite Parties. Accordingly, this Tribunal prima-facie holds that the DG and the Commission relied upon the material evidence and comes to a definite conclusion that the Appellant and the Opposite Parties indulge in anti-competitive conduct in violations of the provisions of Section 3 of the Act.
This Tribunal finds and affirms the findings and the reasons/inference drawn against the Appellant and the Opposite Parties by the 1st Respondent/Commission and the same is ratified by holding the acts of the Appellant and the Opposite Parties is anti-competitive conduct which resulted in limiting production and supply of dubbed movies into Kannada language and their screening within the State of Karnataka, which directly hits the provisions of Section 3(1) read with Section 3(3)(b) of the Competition Act, 2002 - this Tribunal comes to an inescapable and irresistible conclusion that the order passed by the 1st Respondent is in accordance with law and does not warrant any interference by this Tribunal.
Appeal dismissed.
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2022 (10) TMI 643 - MADHYA PRADESH HIGH COURT
Disqualification of Director under section 164(2) of the Companies Act, 2013 - HELD THAT:- From the perusal of the Act of 2013 and Rules of 2014, it appears that Section 152 of the Act of 2013 deals in respect of Appointment of Director whereas Section 153 is in respect of Application for allotment of DIN and Section 154 is in respect of Allotment of DIN. It is pertinent to mention here that as per Section 152(3), allotment of DIN under Section 154 ( or any other number as may be prescribed under Section 153) is a prerequisite for appointment as director of a company.
From perusal of said rule, it appears that cancellation or deactivation of DIN can be done at the instance of any person while moving an application along with fee as specified in the Rules of 2014 and that too after affording of opportunity of hearing (if cancellation or deactivation of DIN is made pursuant to clause (b) of sub-rule 1 of rule 11) - Here, prima facie no application has been moved by any person to reach to a conclusion regarding cancellation or deactivation of DIN at the hands of Registrar. In Rules, incorporation of requirement of moving application is obvious, because allotment of DIN number is prerequisite for appointment of directors, therefore, moving application by person assumes more significance because it is identity which is carried by the director over his shoulder during his stint as director of the company, therefore, such important identification cannot be sacrificed suo motu or at the instance of any misrepresentation. It needs verification of e-record and affording opportunity of hearing in some contingencies especially when the matter pertains to obtaining DIN in a Wrongful Manner or by Fraudulent Means.
So far as application of Sections 164 and 167 of the Act of 2013 is concerned from the Act of 2013 itself it appears that Section 164 of the Act of 2013 was made applicable from 1st May, 2014 whereas Section 167 of the Act of 2013 was made applicable w.e.f. 7th May, 2018 and it is settled in lay that unless statute is made applicable retrospectively, its application would be prospective in nature. In some of the cases, alleged default appears to be of 2015-16 and 2016-17, therefore, three consecutive years have not been lapsed so as to attract the liability or rigours of Section 164(2) of the Act of 2013.
Different High Courts have taken same stand that DIN cannot be cancelled or deactivated resorting to Section 164 or 167 of the Act of 2013 and for the reasons assigned into their orders - looking to the legal position and the judgments passed by different High Courts from time to time, this Court intends to allow the writ petitions preferred by petitioners and set aside the impugned orders passed by Registrar of Companies against the petitioners whereby DIN has been cancelled/deactivated - Petition allowed.
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2022 (10) TMI 642 - NATIONAL COMPANY LAW TRIBUNAL , AMARAVATI BENCH
Seeking restoration of its name in the Register of Companies (RoC), Vijayawada for the State of Andhra Pradesh - Section 252(1) of the Companies Act, 2013 - HELD THAT:- The material available on record indicates that the failure of the Company to furnish the statutory returns with the RoC was not intentional. Apparently the Company has been carrying on its operations as the financial statements would indicate. Unless the Company's name is restored, it will prejudicially affect its prospects and adversely influence the Directors in their future endeavours. The Shareholders of the Company as well as the Applicant are keen to carry on and perform the objects of the Company in right earnest. There have been substantial investments in the project. The Company is continuing its business. Unless the name of the Company is restored in the Register of Companies, it would suffer financially and may go out of business. The directors of the company would also face disqualification.
The name of the Company should be restored in the Register of Companies - Application allowed.
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2022 (10) TMI 440 - NATIONAL COMPANY LAW TRIBUNAL , ALLAHABAD BENCH
Seeking interim relief of issuing directions to the other director to affix his digital signature in the prescribed E-Form 22A (Active) sent to him by the applicant - HELD THAT:- The paramount duty of this Tribunal is to see whether a company has followed the principles of natural justice while taking decisions and has protected the interests of shareholders and the survival of the company itself. It is also observed that the respondent No. 1 is a party to all the decisions regarding the appointment of the applicant as a director of the company. It is apparent that, for some reason, there is a dispute between the two directors, but that does not entitle either of the Directors to take such steps, which will adversely impact the legal status of the company. It is also noted that the complaint against the applicant before the ROC has been closed - As the respondent has fairly admitted during the proceedings that the affairs are currently managed by the sole surviving respondent director, i.e., respondent No. 1, it is all the more obligatory for him to ensure compliance with all the Rules and Regulations laid down in the Companies Act 2013 and the Rules made thereunder.
The respondent No. 1 is directed to make compliances under Rule 25A and affix his digital signatures in the prescribed E-Form 22A (Active) sent to him by the applicant through email dated 23.04.2022 and file the same along with payment of fee/penalty as required so that the status of the company becomes active within two weeks - List the case on 29.11.2022.
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2022 (10) TMI 327 - NATIONAL COMPANY LAW TRIBUNAL , MUMBAI BENCH
Initiation of Voluntary Liquidation proceedings - section 59(7) of IBC - HELD THAT:- On examining the submission made by the counsel appearing for the petitioner and the documents annexed to the petition it appears that the affairs of the company have been completely wound up, and its assets have been completely liquidated.
The Company deserves to be dissolved - application allowed.
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2022 (10) TMI 210 - PUNJAB AND HARYANA HIGH COURT
Validity of Look Out Circulars [LOC] issued and extended by respondent No.2 - territorial jurisdiction to entertain this Writ Petition - Indian entities of the Bank of Baroda and the State Bank of India can make a request for issuance of LOC to respondent No.2 in respect of dues owed to their sister entities incorporated in the UAE or not - Whether this Court has territorial jurisdiction to entertain this Writ Petition? - HELD THAT:- It is the case of the respondents that money decree granted by by the Dubai court (Annexure R-9) against petitioners and M/s AIF, UAE will be enforced in India invoking Sec.44A of the CPC and the notification dt.17.1.2020 issued by the Govt. of India declaring the UAE to be a reciprocating country for purposes of Sec.44A CPC. So the decree holders intend to proceed against the properties of the petitioners located in the State of Haryana and also against the petitioners stated to be resident of Faridabad, State of Haryana - though the respondents may be based outside Haryana, part cause of action arises within the jurisdiction of this Court and this Court has territorial jurisdiction to entertain this Writ Petition under Clause (2) of Article 226 of the Constitution of India - thus, order is answered accordingly in favour of the petitioners and against the respondents.
Whether respondents No.7 and 8, which are Indian entities of the Bank of Baroda and the State Bank of India can make a request for issuance of LOC to respondent No.2 in respect of dues owed to their sister entities incorporated in the UAE as per the Office Memorandums issued by the Ministry of Home Affairs from time to time? - HELD THAT:- LOCs were permitted to be opened essentially against persons involved in cognizable offences and who were evading arrest and not appearing in the trial Court despite NBWs or other coercive measures and there was a likelihood that they would leave the country to evade trial/arrest. It was intended as a coercive measure to make a person surrender to the investigating agency or Court of law - The originating agency can only request that they be informed about the arrival/departure of the subject in such cases. The Office Memorandum stated that the LOC would be valid for a period of one year from the date of issue.
The respondents No.7 and 8, which are Indian entities of the Bank of Baroda and the State Bank of India, cannot make a request for issuance of LOC to respondent No.2 in respect of dues owed to their sister entities incorporated in the UAE as per the Office Memorandums issued by the Ministry of Home Affairs from time to time - issue decided in favour of the petitioners and against the respondents.
Whether respondents No.5 and 6 are entitled to seek LOC against the petitioners? - HELD THAT:- No provision of any Office Memorandum issued by the Ministry of Home Affairs empowering the SFIO to seek a LOC on the pretext of such investigation under Section 212(1) (c) of the Companies Act, 2013 - it has to be held that neither respondent No.5 nor respondent No.6 were entitled to approach the respondent No.2 for issuance of an LOC or its extension in the facts and circumstances of the case.
Whether the petitioners are entitled to any relief? - HELD THAT:- The LOCs issued against the petitioners at the instance of respondents No.3 to 8 by respondent No.2 and which are said to have been extended at their request and are said to be subsisting as on date are all set aside; respondents No.3 to 8 shall communicate this order to respondent No.2; and officials/employees of respondents No. 1 & 2 are restrained from preventing the petitioners from travelling abroad.
Petition allowed.
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2022 (10) TMI 209 - BOMBAY HIGH COURT
Oppression and Mismanagement - Enforceability and validity of family settlement agreement entered upon - existence of concluded agreement capable for specific performance - powers of the NCLT in a Petition for Oppression and Mismanagement - Section 242 of Companies Act - HELD THAT:- Under Section 424, the NCLT has all the powers of a civil court under the CPC, while not being strictly bound by it. Read together, this meant that the MOD could be recorded as a compromise by - and only by - the NCLT; assuming that both sides saw it as capable of being recorded as a compromise. If the Sanghvis repudiated it, by word or deed, then what remained was the undoubted power of the NCLT in the O&M proceeding, one that the civil court did not have. Merely demanding ‘specific performance’ did not give the MOD a colour or a character it did not possess, nor did it vest the civil court with a jurisdiction that stood most emphatically ousted.
This is not a question of a specific performance being granted by the NCLT but whether the MOD was meant only to compromise the NCLT O&M proceedings or whether the compromise was an incident or a consequence of a larger overall settlement. He maintains that the MOD was only to compromise the NCLT proceedings. If that be so, then surely one would expect to find a reference to the NCLT proceedings in the MOD. Other than the last seven words of the MOD, i.e., the withdrawal of the Company Petition, there is no mention in the MOD of the O&M Petition.
But there is a more telling or important clue that the settlement proposed in the MOD was well beyond the Oppression and Mismanagement Petition. The tabulation of the settlement amount payable to the Kamdars clearly includes amounts that are outside even AMPL, the company itself. They include personal obligations of the Sanghvi families. This could never, therefore, have been a proposal only to settle the Oppression and Mismanagement Petition. It is no answer to say that other matters were also being settled but all that was being compromised was the NCLT Petition. The MOD attempted to put a quietus to all disputes by separating out the Kamdar family.
The settlement of the NCLT is only one part - and perhaps not even a significant part - of what was decided in the MOD. The MOD contains internal evidence that the settlement was overall and was of an independent valuation agreed by the parties, by which the Kamdars were to be separated for an agreed valuation of their share at Rs. 245 crores. On a fair assessment of the record, we find that it was the Kamdars who attempted to resile from this position.
Appeal dismissed.
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2022 (10) TMI 208 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
Oppression and Mismanagement - Attempt to illegally and unjustly sideline Appellant No.1 from his role as ‘Head’ of the ‘Digital Division’ - Illegal transfer of 20% shares by the Respondent No.10 to the Respondent No.2 without offering the same to the Appellants - failure to afford an opportunity to Appellant to file counter or reply - suppression of material facts.
Whether failure to afford an opportunity to Appellant to file counter or reply to IA No. 86/KB/2022 is an legality which vitiates the impugned order? - HELD THAT:- The grievance of the appellant is that no opportunity was given to Appellant to file counter/reply to rebut those allegations. Admittedly the Application was filed heard and reserved for order the same day without affording any opportunity to file the counter. Failure of settlement talks is not disputed on the other hand informed to the Tribunal by supplementary affidavit filed in the month of Feb, 2021, but so far as other allegations of misuse of undertaking by 1st Appellant and prejudice caused to the Respondent No. 1 by the acts of the appellant No. 1 are subsequent events which form part of grounds to vacate or modify the order dated 28th June 2019 but no opportunity was given to deny or admit any of the allegations; such denial of opportunity to file counter, is violation of principal of natural justice.
Denial of an opportunity to file counter to vacate stay petition amount to depriving the Appellant of their valuable right to file counter to rebut the allegation of serious in nature and it is also amount to violation of principle of natural justice.
Whether the order impugned in the Appeal is in consonance with the requirements of an order? if not whether the order be sustained, legally? - HELD THAT:- Though, the Tribunal is under obligation to decide the petition on merits without leaving any stone unturned, the Tribunal specifically held that the order was not passed on merits. This itself sufficient to conclude that the order was passed by the Tribunal not on merits - The counsel for the Respondents contended that the order cannot be reversed unless the order is totally against the law are perversed, merely because the Tribunal did not record reason, the order cannot be set aside. Therefore, the order under challenge is unreasoned and without focused consideration of various contentions raised by both Appellants and Respondents before the Tribunal. Consequently, the order is bad and liable to be set aside. Accordingly, the point is answered against the Respondents and in favour of the Appellants - there are no substance in the contention, the same is hereby rejected.
Whether the Appellant No.1 acted prejudicial to the interest of the Company? - HELD THAT:- When the Tribunal did not record any finding on this alleged prejudiced or if any finding is recorded without affording an opportunity, such finding is illegal and violates of principle of natural justice. Since, the Appellant was deprived of valuable right to file his pleadings and thereby denuded to raise any plea with regard to the grounds urged in the application - such findings even if recorded, cannot be sustained in law. Accordingly, the point is answered.
Whether the Appellants suppressed any material and whether this Tribunal while exercising Appellate jurisdiction is entitled to interfere with interim order of NCLT? - HELD THAT:- In the instant order, the Tribunal did not record any prima facie finding as to allegation of oppression or mismanagement of the company that apart the Tribunal did not record any findings as to prerequisite for grant of an interim order. The Tribunal did not advert to the basic principles, passed the order in nonchalant manner which will not stand to the legal scrutiny by this Appellate Tribunal. Therefore, the findings recorded by the Tribunal for vacating the interim order on the ground that the settlement was failed, without deciding the claim of the appellant for interim relief is an erroneous approach. Where the Tribunal did not record such findings, this Appellate Tribunal cannot undertake the exercise of recording any reason or findings as to the oppression of minority shareholders or mismanagement of the Company which are mandatory to claim relief under Section 241 & 242 of the Act - the contention of the Respondent No.4 needs no further consideration by this Appellate Tribunal and such contentions has to be considered by the Tribunal itself.
There are no merit in the contention of learned counsel of the Respondents. Consequently, the point is held in favour of the Appellant and against the Respondents - appeal allowed.
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2022 (10) TMI 98 - NATIONAL COMPANY LAW TRIBUNAL , GUWAHATI BENCH
Seeking restoration of name of the company in the Register of Companies being maintained by the Registrar of Companies, NER, Guwahati, Assam (ROC) - Section 252 of Companies Act - HELD THAT:- The petitioner has contended in the present petition that the company has been active since its incorporation. The failure on the part of the company to file the financial statements was unintentional and not deliberate. However due to such reason the ROC, Guwahati Struck off the name of the Company.
It would be just and equitable to revive the name of the company, KONGBAM CONSTRUCTION PRIVATE LIMITED in the statutory register as being maintained by the Registrar of Companies, Guwahati.
Application allowed.
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2022 (10) TMI 67 - SUPREME COURT
Struck off name of the Company - defunct company. - HC upheld the order of RoC - Locus of the appellant seeking restoration of struck off name of the Company from the register of RoC - RoC asserted that the company was not functioning and not carrying out any business and the last annual return was filed of the year 2002-03 - Section 560(5) of the Companies Act, 1956 - HELD THAT:- the document produced by the appellant including the DIN forms obtained in September/October 2008, much after name of the Company was struck off in the year 2006 and even Form 32 which has now been placed on record by the appellant has been seriously disputed by the respondents.
The Division Bench of the High Court under the impugned judgment has proceeded on the basis of the facts referred to in the affidavit in opposition filed by the RoC while recording a finding regarding the locus of the appellant in assailing the order of the Registrar striking of the name of the Company under Section 560(5) of the Act, 2003 and, at this stage, it is difficult to place reliance on the documents placed by the appellant to claim himself to be one of the Directors of the Company.
Appeal dismissed.
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2022 (9) TMI 1584 - DELHI HIGH COURT
Compliance with the conditions as prescribed in Section 583 of the Companies Act, 1956 - respondent is a foreign company not registered in India - HELD THAT:- List on 5th December, 2022.
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