Oppression and mismanagement - validity of Board Meeting wherein there was removal from position of Head of Finance and Head of Operations - Section 241-242 of the Companies Act, 2013 - HELD THAT:- When the matter is before the Tribunal, arising under Section 241-242 of the Companies Act, 2013, read with Rule 11, irrespective of what the parties plead, say or do, the paramount consideration of the Tribunal is to keep in view as to what is in the interest of the company. The interest of parties is subservient to the interest of company. Indira IVF Hospital Private Limited, i.e. the company is a very popular and most successful company in the concerned field. Continuation of friction for long time between the two groups will definitely be against the interests of the company. Hence, the CPs are required to be decided finally at the earliest.
List both the CPs along with CAs therein, for final disposal on 18.12.2020.
Import of Cashew Nuts - Validity of fumigation certificate as well as the phytosanitary certificate - Prohibited or restricted item - Chapter 6 of the Plant quarantine (Regulations of Import into India) Order, 2003 - HELD THAT:- The petitioner would submit that in accordance with the said Article, the petitioner has applied for one time relaxation for the production of phytosanitary certificate before the second respondent on 08.09.2020. He would also submit that one time relaxation will have to be granted by the second respondent in accordance with Article 14(1) of the Plant quarantine (Regulations of Import into India) Order, 2003 - This Court finds force in the submissions made by the learned counsel for the petitioner and neither the petitioner nor the respondents will be prejudiced if the request made by the learned counsel for the petitioner is granted by this Court.
This Court directs the second respondent to consider the petitioner's application filed under Article 14 of the Plant quarantine (Regulations of Import into India) Order, 2003, seeking for one time relaxation for the production of phytosanitary certificate in respect of the imported 133.158 MTs of raw cashew nuts, under bill of entry filed with Tuticorin Customs and pass final orders on merits and in accordance with law, within a period of six weeks from the date of receipt of a copy of this order - Petition disposed off.
Arbitral Award - whether the award can be allowed to be executed without hearing the application under section 34? - HELD THAT:- The pending decision in the present special leave petition, it would be highly iniquitous to permit the petitioner - Devas Multimedia Private Limited to obtain the fruits of the Award by execution under any law or convention after obtaining a stay from this Court restraining the respondent - Antrix Corporation Limited from pursuing its objections under section 34 of the Act against the Award.
The application filed by the respondent under Section 34 of the Act stands transferred to the Delhi High Court - The petitioner - Devas Multimedia Private Limited will be entitled to seek a deposit of the sum awarded or a part thereof before the Delhi High Court.
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors or not - existence of debt and dispute - time limitation - Whether the Application filed under section 7 of IBC by Applicant/Financial Creditor is maintainable against the Corporate Debtor? - HELD THAT:- The guarantee stood extinguished on approval of the resolution plan. Such extinguishment of the guarantee cannot extinguish the right of a lender available against the principal borrower. Discharge from guarantee cannot be construed as a discharge of the principal borrower. The approved Resolution Plan nowhere stated that the right of the Financial Creditor against the principal borrower stands extinguished - As per Section 128 of the Indian Contract Act, 1872, the liability of the surety is coextensive with that of the principal debtor, unless it is otherwise provided by the contract.
In the matter of GOURI SHANKAR JAIN VERSUS PUNJAB NATIONAL BANK & ANR. [2019 (11) TMI 1169 - CALCUTTA HIGH COURT], the Kolkata High Court has considered the issue that when a secured financial creditor received a haircut in respect of its pursuit of claim against a guarantor, what is the effect of a secured financial creditor receiving payment of a part of its claim, on full and final settlement basis, in terms of the Resolution Plan, on the guarantor's liability. The HC held that the liability qua a surety gets extinguished. However, it cannot be said that, the financial creditor entered into a voluntary compromise with the corporate debtor with regard to the quantum of the claim. Acceptance of the haircut amount from approval of a resolution plan where the FC is a member of the COC, does not mean that the right of the financial creditor to recover the balance amount from the guarantor of the corporate debtor is impaired.
Whether the Application is filed within Limitation? - HELD THAT:- The present application is within period of limitation. The reason is that although the loan was defaulted for the very first time on 15.04.2012, the parties were exploring settlement by way of DRSA. The DRSA was entered within three years from the date of default where the loan amount was expressly acknowledged. The DRSA was cancelled by way of Cancellation Deed dated 29.05.2017, on that date, both parties once again unequivocally admitted the outstanding liability to the tune of ₹ 231 ,48,67,202/- as due and payable by the CD to the Financial Creditor. The said acknowledgment gave rise to a new and fresh period of limitation. The present petition filed in February, 2020, is within three years from the last date of express and undisputed acknowledgment dated 29.05.2017 and is within limitation from such date of acknowledgment - In case of B.K Educational Services Pvt Ltd v. Parag Gupta and Associates [2018 (10) TMI 777 - SUPREME COURT], the Hon'ble Supreme Court held that the Limitation Act, 1963 is applicable to applications filed under Section 7 and Section 9 of the Code and will be governed by Article 137 of the Schedule of the Limitation Act, which provides three years' period of limitation for initiation of the proceedings.
The documentary evidence placed on the case file by the Financial Creditor is sufficient to ascertain the existence of a default on the part of the Corporate Debtor. The Financial Creditor has fulfilled all the requirements of law and proposed the name of the Resolution Professional for appointment as the IRP. Hence, the Application stands admitted and the commencement of the Corporate Insolvency Resolution Process is initiated.
Appointment of Resolution Professional of Corporate Debtor - HELD THAT:- Mr. Radhakrishnan Dharmarajan, Reg.No.lBBl/lPA-001/lP-P00508/2017- 2018/10909 has been appointed as RP by this Tribunal vide order dated 15.10.2020 and confirmation in this regard has been received from the IBBI vide e-mail communication dated 26.10.2020.
Addition u/s 69 - As per assessee advance finance charges on loan granted by financier for purchase of truck which were collected in advance and added to the cost of truck for the purposes of funding by the financier and further an amount of insurance being paid by the finance company on behalf of the assessee for acquisition of the truck which has been added to the cost of the truck for the purposes of granting/funding loan - HELD THAT:- One more opportunity need to be granted to the assessee to produce relevant evidences to substantiate contentions as are made with respect to advance finance charges collected by financier which is added to loan amount as well insurance paid by financier on behalf of the assessee to insure the truck purchased by the assessee. Thus, we are remitting the matter back to the file of the AO for fresh adjudication of the matter denovo. The assessee is directed to produce relevant documentary evidences before the AO to justify his stand. The AO shall admit evidences filed by the assessee which shall be adjudicated on merits in accordance with law. Needless to say that the AO shall give proper and adequate opportunity of being heard to the assessee in accordance with principles of natural justice. The ground number 3 filed by assessee in memo of appeal is allowed for statistical purposes.
Addition towards cash deposits unexplained - HELD THAT:- The complete cash book is not filed and it carries mainly cash receipt from coal business. In any case , the cash book now filed before the tribunal need verification by the authorities below and we are remitting the matter back to the file of the AO for fresh determination of the issue as to the verification of bonafide of explanation of the assessee with respect to sources of cash deposit in Axis Bank claimed to be from business of truck plying. The assessee is directed to produce all relevant evidences of receipts , expenses etc. from the truck plying business to support and justify its stand. The AO is directed to admit all evidences filed by assessee in its support and the same be adjudicated denovo on merits in accordance with law. Needless to say that the AO shall provide proper and adequate opportunity of being heard to the assessee in accordance with principles of natural justice in accordance with law, in denovo proceedings as directed by us. This ground of appeal bearing number 4 filed in memo of appeal filed with tribunal is allowed for statistical purposes.
Rectification u/s 254 - judgments of the jurisdictional High Court not considered - computation of agricultural income earned from leasehold agriculture land - HELD THAT:- Admittedly, the judgments of the jurisdictional High Court rendered in the case of Nandlal Sachdeva [2011 (2) TMI 1566 - ITAT INDORE] was not brought to notice of this Tribunal. It is pointed out by the Ld. counsel for the assessee that there are two conflicting judgments of the Hon'ble’ jurisdictional High Court. It is further pointed out that the judgment in the case of Nandlal Sachdeva (supra) is a later judgment.
Considering the facts that the judgment of the Hon'ble jurisdictional High court was not brought to our notice at the time of passing of order which is subsequently, brought to our notice, therefore, we recall our order in respect of the additional grounds taken by the assessee. Further, the assessee has also pointed out that in earlier round of litigation the Tribunal had directed to compute agricultural income @ of ₹ 6,000/- and also the income earned from leasehold agricultural lands was also not decided. Considering material available on records we deem it proper that both issues require the decision as have not been addressed in the orders, sought to be rectified, which is a mistake apparent from records
Initiation of proceeding against the petitioner under Section 74 of Central Goods and Services Tax Act, 2017 - HELD THAT:- In the interest of justice, re-notify on 16th December, 2020.
The presence of respondent no.1 is dispensed with till further order.
Maintainability of petition - Petitioner did not prefer any appeal before that Appellate Authority, but has instead filed this Writ Petition challenging the order passed by the Respondent beyond the maximum limitation period of 90 days from the date of receipt of copy of that order - HELD THAT:- The Hon'ble Supreme Court of India in ASSISTANT COMMISSIONER (CT) LTU, KAKINADA & ORS. VERSUS M/S. GLAXO SMITH KLINE CONSUMER HEALTH CARE LIMITED [2020 (5) TMI 149 - SUPREME COURT] has emphatically laid down that the High Court in the exercise of powers under Article 226 of the Constitution of India ought not to entertain Writ Petition assailing the order passed by a Statutory Authority which was not appealed against within the maximum period of limitation before the concerned Appellate Authority.
Having regard to that legal position, it is not possible for this Court to express any view on the correctness or otherwise on the merits of the controversy involved in the matter - Petition dismissed.
Maintainability of petition - Territorial Jurisdiction - Petitioner approached this Court instead of High Court of Karnataka at Bangalore - Principle of forum conveniens - HELD THAT:- The reason stated by the Petitioner for having approached this Court instead of High Court of Karnataka at Bangalore is that the 'seat of authority' of the First Respondent is situated at Chennai within the territorial limits of jurisdiction of this Court. Even if it is assumed that in addition to the High Court of Karnataka, this Court would also have territorial jurisdiction, the principle of forum conveniens would come into play as held by the Division Bench of this Court in C. RAMESH VERSUS THE DIRECTOR GENERAL OF POLICE, THE INSPECTOR GENERAL OF POLICE, [2013 (6) TMI 888 - MADRAS HIGH COURT].
There does not appear to be any justification to entertain the Writ Petition for the relief sought in this Court - Petition dismissed.
Imposition of Anti-dumping duty - enhancement of assessable value - change in classification of imported goods - trapezoidal roof profiles - HELD THAT:- Application for correction in the cause title stands allowed.
Permission for withdrawal of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditor - existence of default or not - HELD THAT:- The Adjudicating Authority has, overlooked the mandate of law while deciding the maintainability of application on the basis of the objection raised by the Corporate Debtor.
Claim of the appellant not being reflected under the heading ‘Claims of Operational Creditors’ in the Information Memorandum prepared by the Resolution Professional - HELD THAT:- It is not in dispute that the claim of the appellant is still pending adjudication before the Arbitrator and it has been, therefore, rightly described in the memorandum as other creditor claims (claims under adjudication) - The purpose of memorandum is only to provide relevant information regarding the financial position of the company in question. It is not about deciding the claim or disregarding the claim amount, if it exists in law.
Suffice it to observe that the claim of the appellant has been taken note of in the information memorandum and does not get extinguished as such; but it will be subject to adjudication by the Arbitrator. Since it is part of the memorandum, it is obvious that the resolution applicant would take the same into account while submitting his proposal, due notice whereof will be taken by the committee of creditors as well, and dealt with appropriately in the final resolution plan - In the event, the appellant has any grievance about the nature or manner of provision made in the final resolution plan qua its claim; and if aggrieved with the final resolution plan, may take recourse to appropriate remedy as per law.
Rectification of mistake - Allowability of weighted deduction u/s 35(2AB) - correct date of approval of the prescribed authority - HELD THAT:- The question with regard to the allowability of the assessee to claim deduction u/s 35(2AB) for AY 2011-12 needs to be re-adjudicated as there is a mistake apparent on the face of the record in terms of noticing the correct date of approval of the prescribed authority u/s 35(2AB). The decision of the Tribunal for AY 2010- 11 rejecting the appeal of the assessee for allowing deduction u/s. 35(2AB) of the Act will not be affected in any manner. However, the findings in AY 2010-11 regarding date of application for grant of approval and date of approval will be adjudicated afresh while adjudicating the issue of deduction u/s. 35(2AB) of the Act for AY 2011-12 without being influenced in any manner whatsoever by the findings in AY 2010-11.
Permission for withdrawal of petition - Grant of Bail - Money Laundering - siphoning of funds - proceeds of crime - money circulation scheme - HELD THAT:- Prayer is allowed.
The special leave petition is dismissed as withdrawn with the liberty aforesaid.
Maintainability of petition - Petitioner did not prefer any appeal before the TNSTAT, but has instead filed petition challenging the order passed by the Joint Commissioner beyond the maximum limitation period of 120 days - HELD THAT:- The Hon'ble Supreme Court of India in ASSISTANT COMMISSIONER (CT) LTU, KAKINADA & ORS. VERSUS M/S. GLAXO SMITH KLINE CONSUMER HEALTH CARE LIMITED [2020 (5) TMI 149 - SUPREME COURT] has emphatically laid down that the High Court in the exercise of powers under Article 226 of the Constitution of India ought not to entertain Writ Petition assailing the order passed by a Statutory Authority which was not appealed against within the maximum period of limitation before the concerned Appellate Authority.
The Writ Petition challenging the order of the Joint Commissioner has not been filed within the maximum limitation period of 120 days from the date of receipt of copy of that order. The Petitioner has not shown any infirmity in the Garnishee Order No. TIN: 33510640011 dated 07.10.2015 issued by the Deputy Commissioner to Standard Chartered Bank for the recovery of the tax liability determined against the Petitioner - Petition dismissed.
Reference of matter to Mediation Centre - As per the report of Mediation Centre dated 04.12.2019, mediation has failed, after which, matter was listed on 03.09.2020 - Counsel is standing here and requesting for adjournment without the file and is not aware of the earlier orders as well as brief facts of the case - HELD THAT:- Learned counsel for opposite party no. 2 has pointed out that on earlier occasions also just to linger on the matter, a request has been made on behalf of the applicant to pass over the case - In such a situation, though the case is passed over but the interim order granted earlier on 28.06.2019 stands vacated.
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute or not - impugned order of admission of application under Section 7 of I&B Code passed in ex-parte - HELD THAT:- No notice was served upon the Corporate Debtor and even the impugned order does not speak of notice being issued by the Adjudicating Authority. However, since the order is an ex-parte, we deem it appropriate to allow learned counsel for the Appellants to withdraw the appeal with liberty to agitate the matter before the Adjudicating Authority. The appeal is disposed of as withdrawn giving liberty to Appellant to raise the issue before the Adjudicating Authority in regard to notice not being served on the Corporate Debtor and the impugned order being passed in ex-parte without according opportunity to the Corporate Debtor of being heard. Appellants will be at liberty to demonstrate that no notice was served upon the Corporate Debtor before the impugned order came to be passed.
The Appellate Tribunal CESTAT Mumbai allowed an early hearing application for a live consignment case. The appeal is scheduled for hearing on 14th December 2020.
Seeking to terminate a contract of service with the Appellant - seeking to blacklist the Appellant from participating in any future tenders of the Corporation for a period of 5 years - HELD THAT:- This Court in Gorkha Security Services v. Government (NCT of Delhi) and Ors. [2014 (8) TMI 1081 - SUPREME COURT] has described blacklisting as being equivalent to the civil death of a person because blacklisting is stigmatic in nature and debars a person from participating in government tenders thereby precluding him from the award of government contracts. It has been held that It is a common case of the parties that the blacklisting has to be preceded by a show-cause notice. Law in this regard is firmly grounded and does not even demand much amplification. The necessity of compliance with the principles of natural justice by giving the opportunity to the person against whom action of blacklisting is sought to be taken has a valid and solid rationale behind it. With blacklisting, many civil and/or evil consequences follow. It is described as "civil death" of a person who is foisted with the order of blacklisting. Such an order is stigmatic in nature and debars such a person from participating in government tenders which means precluding him from the award of government contracts.
In the present case, the factum of service of the show cause notice dated 10.04.2018 by the Corporation upon the Appellant is not in dispute. Rather, what Shri Banerji has argued on behalf of the Appellant is that the contents of the said show cause notice were not such that the Appellant could have anticipated that an order of blacklisting was being contemplated by the Corporation - Gorkha Security Services is a case where this Court had to decide whether the action of blacklisting could have been taken without specifically proposing/contemplating such an action in the show-cause notice.
A clear legal position emerges that for a show cause notice to constitute the valid basis of a blacklisting order, such notice must spell out clearly, or its contents be such that it can be clearly inferred therefrom, that there is intention on the part of the issuer of the notice to blacklist the noticee. Such a clear notice is essential for ensuring that the person against whom the penalty of blacklisting is intended to be imposed, has an adequate, informed and meaningful opportunity to show cause against his possible blacklisting.
The action of blacklisting was neither expressly proposed nor could it have been inferred from the language employed by the Corporation in its show cause notice. After listing 12 clauses of the "Instruction to Bidders", which were part of the Corporation's Bid Document dated 25.11.2016, the notice merely contains a vague statement that in light of the alleged leakage of question papers by the Appellant, an appropriate decision will be taken by the Corporation. In fact, Clause 10 of the same Instruction to Bidders Section of the Bid Document, which the Corporation has argued to be the source of its power to blacklist the Appellant, is not even mentioned in the show cause notice. While the notice clarified that the 12 clauses specified in the notice were only indicative and not exhaustive, there was nothing in the notice which could have given the Appellant the impression that the action of blacklisting was being proposed. This is especially true since the Appellant was under the belief that the Corporation was not even empowered to take such an action against it and since the only Clause which mentioned blacklisting was not referred to by the Corporation in its show cause notice - mere existence of a Clause in the Bid Document, which mentions blacklisting as a bar against eligibility, cannot satisfy the mandatory requirement of a clear mention of the proposed action in the show cause notice. The Corporation's notice is completely silent about blacklisting and as such, it could not have led the Appellant to infer that such an action could be taken by the Corporation in pursuance of this notice. Had the Corporation expressed its mind in the show cause notice to black list, the Appellant could have filed a suitable reply for the same. Therefore, the show cause notice dated 10.04.2018 does not fulfil the requirements of a valid show cause notice for blacklisting.
The blacklisting order passed by the Corporation is contrary to the principles of natural justice - Having regard to the peculiar facts and circumstances of the present case, it is deemed appropriate not to remit the matter to the Corporation for fresh consideration - appeal allowed.
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