|
Advanced Search Options
Case Laws
Showing 101 to 120 of 454 Records
-
2002 (3) TMI 854
Issues:
Demand of Customs duty and penalty on imported poly bags due to failure to re-export within six months as per bond conditions.
Analysis:
The judgment pertains to an appeal filed against the confirmation of a Customs duty demand of Rs. 1,50,747/- and a penalty of Rs. 10,000/- on the applicants for failing to re-export printed poly bags within six months as per the bond conditions. The applicants, manufacturers and exporters of leather garments, imported poly bags duty-free for packing garments under an exemption Notification. The duty was confirmed on poly bags imported from Hong Kong and cleared under an exemption Notification. The authorities found the applicants in violation of the re-export condition, leading to the duty demand and penalty imposition.
The Consultant argued that there was no condition in the exemption Notification requiring re-export within six months, and the bond condition was an additional requirement. The Consultant presented a certificate indicating export of garments packed in imported poly bags, claiming a prima facie case. However, the JDR opposed, stating lack of evidence of poly bag export within six months and absence of poly bag mention in shipping documents or US buyer requirements. The JDR emphasized the applicants' obligation to fulfill the re-export commitment.
Upon examination, the Judge found that the applicants undertook to re-export within six months, which they failed to prove through shipping documents or the certificate. Despite no specific condition in the Notification, the applicants voluntarily bound themselves to the re-export obligation. The Judge rejected the argument that the re-export requirement was extra-legal, emphasizing the applicants' contractual commitment. Considering the deposit made and penalty imposition without prior proposal, the Judge directed a deposit of Rs. 75,000/-, with waiver and stay granted upon compliance, excluding the penalty amount.
In conclusion, the judgment upholds the duty demand and penalty on the applicants for non-compliance with the re-export condition, emphasizing the binding nature of their contractual commitment despite the absence of a specific condition in the Notification. The decision highlights the importance of fulfilling obligations voluntarily undertaken by importers to avoid duty liabilities and penalties.
-
2002 (3) TMI 853
The Appellate Tribunal CEGAT, Mumbai ruled in favor of the appellant, waiving the duty of Rs. 13.12 lakhs and the penalty imposed. The tribunal found that the scrap in question resulted from wear and tear of goods used by the applicant, not from manufacturing activity undertaken by the applicant.
-
2002 (3) TMI 846
The Appellate Tribunal CEGAT, Kolkata allowed the stay petition and remanded the matter to lower authorities for fresh adjudication. The Revenue authorities proceeded with recovery proceedings despite being informed of the stay order, showing little respect for higher authorities' orders. The Tribunal directed authorities not to start any coercive action against the appellant.
-
2002 (3) TMI 843
The Appellate Tribunal CEGAT, Kolkata allowed the stay petition and remanded the matter for fresh adjudication. Despite informing the Revenue about the stay, they proceeded with recovery actions. The Tribunal directed the authorities not to take coercive action against the appellant.
-
2002 (3) TMI 842
Issues:
1. Entitlement to benefit of Notification No. 2/95-C.E.
2. Liability to pay excise duty under excise tariff or an amount equal to customs duty.
Entitlement to benefit of Notification No. 2/95-C.E.:
The appellants, a 100% EOU manufacturing printed circuit boards (PCB), filed an appeal against an adjudication order for clearing goods in DTA exceeding Rs. 50 lakh, leading to a demand for duty and penalty. The contention was that they were not entitled to the benefit of Notification No. 2/95-C.E. for goods sold in DTA without permission. The appellant argued that they had paid central excise duty equivalent to 50% of customs duties leviable on imported goods, citing a Supreme Court decision and a Ministry of Finance circular. The revenue contended that EOUs are liable for duty equal to customs duties under the Central Excise Act. The issue revolved around whether the appellants were liable for central excise duty or customs duty.
Liability to pay excise duty under excise tariff or an amount equal to customs duty:
The Ministry of Finance circular clarified that prior to 11-5-2001, clearances from EOUs not allowed to be sold in India were chargeable to duty under Section 3(1) of the Central Excise Act. The circular emphasized that the Act applies to all goods manufactured in India, including those by EOUs. As per the circular, EOUs not allowed to sell in India were to pay central excise duty as per the Central Excise Tariff. Consequently, the appellate tribunal set aside the demand for duty equal to customs duty, ruling in favor of the appellants and allowing the appeal while also canceling the penalty imposed.
This judgment clarifies the entitlement of EOUs to the benefit of Notification No. 2/95-C.E. and the liability for payment of excise duty under the Central Excise Act. It highlights the importance of compliance with regulations regarding the sale of goods in DTA by EOUs and the interpretation of relevant legal provisions. The decision provides guidance on the application of excise duty in cases where goods are not allowed to be sold in India, emphasizing the legal framework governing EOUs' operations and duty obligations.
-
2002 (3) TMI 837
Issues: Smuggling of synthetic fabrics, ownership claims, voluntariness of statements, origin of seized goods, confiscation of goods and penalties
Smuggling of Synthetic Fabrics:
The judgment revolves around the interception of a car loaded with 200 thans of synthetic fabrics of Bangladeshi origin valued at Rs. 1.62 lakhs. The four appellants claimed various roles related to the car and the fabrics, admitting the smuggled nature of the goods and their involvement in transporting contraband to Calcutta. The appellants were arrested and produced before the court, leading to the initiation of proceedings against them. The original adjudicating authority confiscated the seized fabrics and imposed penalties on the individuals.
Ownership Claims and Voluntariness of Statements:
The appellants contended that the car was fitted with red lights and a "Government of India on duty" plate under the instructions of a specific individual who had been let off by the Commissioner (Appeals). They argued that the statements given by them while in custody should not be considered voluntary and true. However, the court found that the appellants had initially admitted to the contraband nature of the goods and their foreign origin in their statements, which were reiterated even when they were in judicial custody. The court dismissed the belated retraction of statements as an afterthought and upheld the admissibility of the statements as evidence.
Origin of Seized Goods:
The appellants disputed the origin of the seized fabrics, claiming there was no expert test report proving the Bangladeshi origin of the goods. Despite this, the court noted that the appellants had admitted to the Bangladeshi origin of the goods in their statements. The presence of marks of Bangladesh on the fabrics further supported this admission. The court upheld the authorities' decision to reject the appellants' plea for a test report, citing the appellants' clandestine activities, use of unauthorized red lights, and the presence of foreign origin goods in the car as evidence of smuggling.
Confiscation of Goods and Penalties:
Ultimately, the court found that the cumulative evidence, including the appellants' statements, the presence of foreign origin goods, and their unauthorized use of the vehicle with government markings, led to the conclusion that the synthetic fabrics were of contraband nature. As a result, the court upheld the confiscation of the goods and the imposition of penalties on the appellants. The appeals were rejected, and stay petitions were disposed of accordingly.
-
2002 (3) TMI 833
Issues Involved:
1. Power of the Court under Section 237(a)(ii) of the Companies Act, 1956.
2. Locus standi of the petitioner.
3. Allegations of mismanagement, misappropriation, and non-compliance with statutory obligations by the company.
4. Validity and necessity of deeper investigation into the company's affairs.
Issue-wise Detailed Analysis:
1. Power of the Court under Section 237(a)(ii) of the Companies Act, 1956:
The judgment discusses the Court's authority under Section 237(a)(ii) to declare that a company's affairs ought to be investigated by an inspector appointed by the Central Government. Section 237 allows the Central Government to appoint inspectors if the company passes a special resolution or if the Court declares that an investigation is necessary. The Court cannot directly appoint inspectors but can mandate the Central Government to do so. This power is independent of Section 235 and operates without prejudice to it. The Court must be satisfied that there is sufficient material to warrant a deeper probe into the company's affairs, and mere allegations are insufficient. The Court's discretion under Section 237(a)(ii) is broad and not limited by the conditions listed under Section 237(b).
2. Locus Standi of the Petitioner:
The petitioner, a promoter and equity shareholder of the company, alleged fraudulent removal from the company and mismanagement by the managing director. The Court considered whether the petitioner had the standing to file the petition, given the company's claim that his shares were transferred. The Court concluded that the petitioner had a substantial interest in the company's affairs and could not be dismissed as having no concern in the company. The Court emphasized that the petitioner's allegations warranted investigation to uncover potential fraud and mismanagement.
3. Allegations of Mismanagement, Misappropriation, and Non-compliance with Statutory Obligations:
The petitioner accused the managing director of fraudulent mismanagement, creating false documents, and misappropriating funds from a public issue. The company allegedly failed to hold annual general meetings and file balance sheets on time, resulting in numerous prosecution cases. The Central Government's counter-affidavit supported these allegations, highlighting irregularities in share allocation, non-refund of oversubscribed amounts, and diversion of funds. The Court found these allegations and supporting materials sufficient to justify a deeper investigation.
4. Validity and Necessity of Deeper Investigation into the Company's Affairs:
The Court evaluated whether the materials presented justified a declaration for investigation under Section 237(a)(ii). The Central Government's counter-affidavit revealed significant discrepancies and potential misuse of funds, reinforcing the need for an investigation. The Court noted that the petitioner might not have access to all necessary materials, making an investigation crucial to uncover hidden issues. The Court concluded that the circumstances warranted an investigation in the company's interest, and the discretionary order for investigation was justified.
Conclusion:
The judgment upheld the company court's decision to declare that the company's affairs ought to be investigated by an inspector appointed by the Central Government. The Court found sufficient material to justify the investigation and dismissed the appeal, emphasizing the necessity of a deeper probe to protect the company's interests and uncover potential mismanagement and fraud.
-
2002 (3) TMI 832
Issues:
Quashing of complaints under section 138 of the Negotiable Instruments Act, 1881 against an accused who is not a director but is implicated due to marital relation and health condition.
Analysis:
The petitioner, accused in cases under section 138 of the Negotiable Instruments Act, sought to quash complaints contending she is not a director of the company but is implicated due to her marital relation and health condition. The complainant argued that as per the complaint, all directors are responsible for the company's affairs, including issuing cheques without funds. The court noted previous cases where prosecution was allowed based on involvement in day-to-day affairs. The court referred to section 141 of the Act, which includes persons in managerial roles for penal liability. The court highlighted the importance of evidence during trial to prove innocence.
The court emphasized that the business of a company is usually handled by its directors, and specific allegations were made against the petitioner regarding her role in the company's affairs and the cheque issuance. The court noted the provision in section 141(1) allowing the accused to prove lack of consent or knowledge in the offence. The court cited a recent Supreme Court case, stating complaints cannot be quashed based solely on petition averments. The court held that the petitioner's claim of being ailing was not a valid ground for immunity from prosecution.
In conclusion, the court dismissed the petitions, stating that the petitioner can present evidence during the trial to prove innocence regarding her directorial role or lack of knowledge in the offence. The court highlighted the need for factual evidence and rejected the claim of immunity based on health condition.
-
2002 (3) TMI 831
Issues Involved:
1. Validity of the sale confirmation in favor of the respondent.
2. Allegation of sale area discrepancy.
3. Locus standi of the applicant.
4. Validity of the "as is where is" sale condition.
5. Adequacy of the sale price.
6. Return of the deposit amount.
Detailed Analysis:
1. Validity of the sale confirmation in favor of the respondent:
The applicant, Kanchanjhanga Commotrade (P.) Ltd., the second highest bidder, filed an application to set aside the sale confirmed in favor of the respondent No. 1 by the Company Judge on 26-3-1999. The sale involved land and assets of Spawk Engg. (P.) Ltd. (in liquidation). The respondent No. 1 was the highest bidder at Rs. 13.5 lakhs, and the sale was confirmed after an open bid held in court.
2. Allegation of sale area discrepancy:
The applicant contended that the sale notice mentioned a land area of 4.68 acres, but a certificate from the managing director indicated that 2.3076 acres had been sold previously. The applicant argued that this discrepancy led to the respondent No. 1 acquiring a larger area than advertised. However, the court found no documents supporting the alleged sale of 2.3076 acres, and the balance sheet and records indicated that the entire 4.68 acres were still in the company's name.
3. Locus standi of the applicant:
The respondent No. 1's counsel questioned the applicant's locus standi, arguing that the applicant, being an unsuccessful bidder and neither a secured creditor nor a contributor, had no standing to challenge the sale. The court agreed, noting that the applicant's status as an unsuccessful bidder did not entitle it to seek the sale's invalidation.
4. Validity of the "as is where is" sale condition:
The court noted that the sale was conducted on an "as is where is" basis, as clearly stated in the sale notice. This term applied to the entire property, including the land, and all bidders, including the applicant, had the opportunity to inspect the property before bidding. The court found that the applicant had adequate notice and opportunity to ascertain the property's exact area.
5. Adequacy of the sale price:
The court observed that the sale price of Rs. 13.5 lakhs exceeded the valuation reports, which valued the property at Rs. 9.5 lakhs and Rs. 7.25 lakhs, respectively. There was no contention that the sale price was shockingly low or below the property's proper value. The court emphasized that the sale was valid and confirmed by the court, and there was no basis to set it aside on the grounds raised by the applicant.
6. Return of the deposit amount:
The applicant had deposited Rs. 5 lakhs with its advocate on record as directed by the court. Following the dismissal of the application to set aside the sale, the court directed that the request for the return of the deposit be considered by the appropriate Company Judge in accordance with the law.
Conclusion:
The court dismissed the application to set aside the sale, vacated all interim orders, and directed the official liquidator to proceed with the conveyance preparation. The application for return of the deposit amount was to be considered separately by the Company Judge. The application was dismissed without any order as to costs.
-
2002 (3) TMI 829
Issues Involved:
1. Whether the petitioners are noteholders.
2. Whether the petitioners are debenture holders or holders of any security as contemplated by the Companies Act.
3. Whether the petitioners are creditors under section 439(1)(b) of the Companies Act.
4. Enforceability of the petitioners' claims in view of clause (6), condition No. 13.
Detailed Analysis:
1. Whether the petitioners are noteholders:
The petitioners claim to be beneficial owners of floating rate notes (FRNs) issued by Essar Steel Ltd. The respondent-company argued that the petitioners, being mere beneficial owners, do not have a legal right to file a winding-up petition. The court found that the petitioners are noteholders as the respondent-company itself recognized the concept of beneficial owners of the notes. The court held that the petitioners, although beneficial owners, are entitled to enforce their rights under the notes. The court rejected the first preliminary contention of the respondent-company.
2. Whether the petitioners are debenture holders or holders of any security as contemplated by the Companies Act:
The court examined whether the FRNs qualify as debentures under the Companies Act. It was argued that the notes are not marketable securities and thus not debentures. The court referred to judicial pronouncements defining debentures and concluded that the notes fit into this definition as they acknowledge a debt and promise to return it with interest. The court held that the petitioners are debenture holders and overruled the second preliminary contention.
3. Whether the petitioners are creditors under section 439(1)(b) of the Companies Act:
The respondent-company contended that the petitioners are not creditors as they cannot give a valid discharge, only the trustee can. The court noted that sub-section (2) of section 439 deems debenture holders as creditors. The court held that the petitioners, as debenture holders, are creditors and can file a winding-up petition, but the trustee is a necessary party in such proceedings. The court rejected the third preliminary contention with a clarification that the trustee must be joined as a necessary party.
4. Enforceability of the petitioners' claims in view of clause (6), condition No. 13:
The respondent-company argued that the petitioners cannot bring any action unless the trustee, required by 20% of the noteholders, fails to act. The court found that condition No. 13 provides a mechanism for enforcement but does not obliterate the statutory right to file a winding-up petition. The court held that the petitioners' right to file the petition is not affected by condition No. 13, provided the trustee is joined as a necessary party. The court noted that the enforceability clause must be considered in light of the trustee's stand and the petitioners' holding in the notes.
Orders:
The court overruled the preliminary contentions raised by the respondent-company and held that the trustee is a necessary party to the proceedings. The court granted the petitioners time to join the trustee as a party and adjourned the hearing to consider the applicability of condition No. 13 in light of the trustee's stand and the petitioners' holding in the notes.
-
2002 (3) TMI 828
Issues Involved:
1. Maintainability of application under section 446 of the Companies Act, 1956 by a guarantor.
2. Liability of the guarantor in relation to the company's debt.
3. Impact of non-registration of charge under section 125 of the Companies Act.
4. Right to charge interest post winding-up order.
5. Applicability of 'quia-timet' principle for the guarantor.
Detailed Analysis:
1. Maintainability of Application under Section 446:
The court examined whether an application under section 446, at the instance of the guarantor, is maintainable. It was argued by the respondent that such an application is maintainable only at the instance of the company (in liquidation) and not by a guarantor. The court referred to several precedents, including *Patheja Bros. Forgings & Stamping v. ICICI Ltd.*, which held that suits for enforcement of guarantees require consent under section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985. The court concluded that the determination of the guarantor's liability is not incidental to the winding-up proceedings and hence, the application under section 446 by the guarantor was dismissed.
2. Liability of the Guarantor:
The court analyzed the bond of guarantee executed by the guarantor, which included clauses that made the guarantor's liability co-extensive with the principal debtor. The bond stated that the guarantor would indemnify the Corporation against all losses and that the guarantee would remain binding until full repayment. The court noted that the guarantor's liability is enforceable even if no action has been taken against the company and that the guarantor agreed to pay on demand.
3. Impact of Non-Registration of Charge:
The applicant argued that the failure to register the charge under section 125 of the Companies Act rendered the charge void against the liquidator, thus making PICUP an unsecured creditor. The court did not find this argument sufficient to discharge the guarantor's liability, as the bond of guarantee was independent of the registration of the charge.
4. Right to Charge Interest Post Winding-Up Order:
The applicant contended that PICUP could not charge interest from the company or the guarantor after the winding-up order. The court did not specifically address this issue in detail but implied that such matters could be defended by the guarantor in appropriate proceedings, rather than in the winding-up proceedings.
5. Applicability of 'Quia-Timet' Principle:
The applicant invoked the 'quia-timet' principle, which allows a surety to seek relief before payment. The court referred to legal texts and precedents explaining that a surety can compel the principal debtor to relieve him from obligations even before discharging them. However, the court found that the determination of the guarantor's liability using this principle was not incidental to the winding-up proceedings and thus, could not be adjudicated under section 446.
Conclusion:
The court dismissed the application under section 446 of the Companies Act, 1956, filed by the guarantor, on the grounds that the relief claimed did not relate to or arise in the course of the winding-up proceedings. The court held that the determination of the guarantor's liability is not necessary for the effective winding-up of the company and refused to exercise its discretion to adjudicate the matter. The application was dismissed with no order as to costs.
-
2002 (3) TMI 827
Issues:
Challenge to order of Appellate Authority for Industrial and Financial Reconstruction (AAIFR) dismissing appeal against Board for Industrial and Financial Reconstruction (BIFR) order. Dispute over rehabilitation scheme reliefs from Government of India (Department of Revenue) under Sick Industrial Companies (Special Provisions) Act, 1985.
Analysis:
1. The petitioner challenged the AAIFR's order dated 16-5-2001, which dismissed their appeal against the BIFR's order dated 22-11-2000. The BIFR had directed the IDBI to issue an advertisement for change of management for a sick industrial company, Rajasthan Explosive & Chemicals Ltd. The petitioner, Government of India (Department of Revenue), had concerns regarding the reliefs envisaged in the Draft Rehabilitation Scheme (DRS) under the SICA, including tax exemptions, carry forward of losses, and deferment of tax dues.
2. The petitioner argued that the DRS lacked requisite details and information for them to examine the scheme on merits. The BIFR's order dated 8-5-2000 recorded the promoter's agreement to cover any shortfall due to inadequate reliefs and concessions. However, the sanctioned scheme circulated on 22-11-2000 deviated from the earlier order, mandating specific exemptions and reliefs from the petitioner. The petitioner contended that they were adversely affected by the sanctioned scheme, justifying their appeal against it.
3. The court noted that the DRS did not quantify tax concessions expected from the petitioner, hindering their ability to provide consent. The BIFR's failure to supply necessary details meant the limitation period for objections under section 19(2) had not commenced. The court emphasized the importance of providing complete information for a fair assessment.
4. The court found discrepancies between the order sanctioning the scheme and the subsequent circulation of the scheme, affecting the petitioner's interests. The petitioner's appeal was justified as they were significantly impacted by the circulated sanctioned scheme, which limited the petitioner's discretion in granting reliefs and concessions to the third respondent company.
5. Ultimately, the court allowed the writ petition, quashing the AAIFR's order and the BIFR's order to the extent it directed the Income-tax Department to grant reliefs to the third respondent. The BIFR was instructed to reevaluate the matter, considering whether reliefs and concessions were necessary for the company's revival, and involving the petitioner in the decision-making process.
-
2002 (3) TMI 825
Whether the Parliament has the competence to enact a law for establishing such the Banking Tribunals?
Held that:- Now an appellate forum has been provided against any orders of the recovery officer which may not be in accordance with law. There is, therefore, sufficient safeguard which has been provided in the event of the recovery officer acting in an arbitrary or an unreasonable manner. The provisions of sections 25 and 28 are, therefore, not bad in law.
For the aforesaid reasons, while allowing the appeals of the Union of India and the Banks, it is held that the Act is a valid piece of legislation. As a result thereof, the writ petitions or appeals filed by various parties challenging the validity of the said Act or some of the provisions thereof, are dismissed. It would be open to the parties to raise other contentions on the merits of their cases before the authority constituted under the Act and, only thereafter, should a High Court entertain a petition under article 226 and/or 227 of the Constitution. Transferred Cases stand disposed of accordingly. Parties to bear their own costs.
-
2002 (3) TMI 824
Whether the language of the Act is so plain and unambiguous as to admit of only the interpretation suggested by Mr. Sen?
Held that:- The provisions of Part I would apply to all arbitrations and to all proceedings relating thereto. Where such arbitration is held in India the provisions of Part I would compulsory apply and parties are free to deviate only to the extent permitted by the derogable provisions of Part I. In cases of international commercial arbitrations held out of India provisions of Part I would apply unless the parties by agreement, express or implied, exclude all or any of its provisions. In that case the laws or rules chosen by the parties would prevail. Any provision, in Part I, which is contrary to or excluded by that law or rules will not apply.
-
2002 (3) TMI 823
Issues involved:
- Interpretation of lease agreement for machinery rental
- Default in payment of rentals by respondent-company
- Issuance of statutory notice for non-payment
- Respondent-company's objections based on arbitration clause in lease agreement
- Court's discretion to entertain company petition despite arbitration clause
- Determination of respondent-company's inability to pay debts
Interpretation of lease agreement for machinery rental:
The petitioner and respondent companies, both incorporated under the Companies Act, entered into a lease agreement for machinery rental. The agreement specified the amount payable by the respondent for using the machinery. Default in payment led to the petitioner sending multiple letters requesting payment, which were acknowledged by the respondent.
Default in payment of rentals by respondent-company:
Despite repeated requests, the respondent failed to pay the rentals due to the petitioner, leading to the issuance of a statutory notice by the petitioner demanding payment of a substantial amount, including service charges. The respondent replied denying the amount due and alleging threats from the petitioner.
Issuance of statutory notice for non-payment:
The statutory notice sent by the petitioner was received by the respondent, who responded denying the debt and alleging improper threats from the petitioner. The respondent also raised issues regarding third-party transactions affecting payment obligations.
Respondent-company's objections based on arbitration clause in lease agreement:
The respondent objected to the winding-up petition, citing an arbitration clause in the lease agreement. They argued that the existence of arbitration provisions should preclude the company petition and relied on court precedents to support their stance.
Court's discretion to entertain company petition despite arbitration clause:
The court considered the arguments presented and examined relevant judgments, concluding that the presence of an arbitration clause does not prevent the court from entertaining a winding-up petition if the respondent is unable to pay its debts. Precedents from Madras High Court and Punjab and Haryana High Court supported this view.
Determination of respondent-company's inability to pay debts:
After reviewing the lease agreement, responses to correspondence, and the statutory notice, the court found that the respondent, despite acknowledging its liability, was unable to pay the debts owed. The court exercised its discretion to admit and advertise the petition based on the respondent's inability to pay its debts within the specified time frame.
The court ordered the admission of the petition and directed the petitioner to publish notices in specified newspapers, setting the date for the hearing.
-
2002 (3) TMI 822
Issues Involved:
1. Sanction of the scheme of amalgamation under sections 391 to 394 of the Companies Act, 1956.
2. Objections raised by shareholders and other individuals.
3. Compliance with statutory provisions and regulatory approvals.
Issue-wise Detailed Analysis:
1. Sanction of the Scheme of Amalgamation:
The petition was filed by ICICI Bank Limited to obtain the court's sanction for the amalgamation of ICICI Limited, ICICI Capital Services Limited, and ICICI Personal Financial Services Limited (collectively referred to as the "transferor-companies") with ICICI Bank Limited (the transferee-company). The court noted that the amalgamation was proposed due to the benefits of transformation into a universal bank and the existing strong business synergies between ICICI and ICICI Bank. The scheme was approved by the board of directors of the transferor and transferee companies on October 25, 2001, and was subsequently sanctioned by an overwhelming majority of equity shareholders.
2. Objections Raised by Shareholders and Other Individuals:
Several objections were received from shareholders and other individuals, including concerns about the share exchange ratio, dividend income post-merger, and grievances against Bank of Madura Ltd., which had previously merged with ICICI Bank. The court found that most objections were vague and did not raise any specific legal issues. One significant objection was from Mr. Rajiv Agarwal, who had filed a criminal complaint regarding dishonored cheques. However, the court noted that the criminal proceedings were stayed by the Rajasthan High Court. Another objector, Mr. S.V. Parekh, had grievances against Bank of Madura Ltd., but the court held that these grievances could be addressed by the Consumer Forum and did not relate to the amalgamation.
3. Compliance with Statutory Provisions and Regulatory Approvals:
The court referred to the principles laid down by the Apex Court in Miheer H. Mafatlal v. Mafatlal Industries Ltd., emphasizing the scope and ambit of the jurisdiction of the company court under sections 391 to 394 of the Companies Act. The court ensured that all requisite statutory procedures were complied with, including holding the requisite meetings and obtaining the necessary majority vote. The Central Government's observations were addressed by the scheme itself, which provided for amendments to the memorandum and articles of association of the transferee-company. The court also noted that the scheme's sanction was conditional upon the Reserve Bank of India granting the requisite statutory approvals.
Conclusion:
The court sanctioned the scheme of amalgamation of ICICI Limited, ICICI Capital Services Limited, and ICICI Personal Financial Services Limited with ICICI Bank Limited. The court directed the petitioner-company to pay the fees of the learned additional standing counsel for the Central Government and disposed of the petition and the related civil application. The sanction was subject to approval by the Reserve Bank of India and the Bombay High Court in respect of the transferor-companies.
-
2002 (3) TMI 819
Issues:
Creditor's winding-up petition filed for non-payment of dues under Companies Act, 1956.
Analysis:
The petitioner, a creditor, filed a winding-up petition against the respondent company for not paying Rs. 1,92,670 despite a demand notice. The petitioner alleged the respondent was unable to pay its dues, seeking winding up under section 433(e) of the Companies Act, 1956. The respondent argued that there were mutual material supplies and adjustments leading to a different balance. The respondent claimed the petitioner owed them Rs. 2,06,000 for rent, which was adjusted against the dues. The respondent also mentioned a dispute over shares transfer pending before the CLB, New Delhi.
The petitioner contended that the respondent failed to vacate rented flats and pay rent, while the respondent claimed the petitioner did not vacate flats and had outstanding rent. Both parties had differing accounts of the rent due and adjustments made. The court noted a bona fide dispute over the amount owed, emphasizing that a winding-up petition should not be used to enforce payment of a disputed debt. Citing legal precedents, the court highlighted that a genuine dispute precludes the application of deeming provisions for insolvency. The court dismissed the petition, stating it was an abuse of process unless the dispute was not bona fide.
The senior advocate for the respondent presented the company's financial health, showing profitability and sound financial status. The court, considering the facts and financial position, found no grounds to issue further notice under the Companies (Court) Rules, 1959, and dismissed the company petition. The court emphasized that a winding-up petition should not be used to resolve common law disputes and should be based on genuine insolvency concerns rather than disputed debts.
-
2002 (3) TMI 817
Issues:
1. Quashing of proceedings before the Debt Recovery Tribunal
2. Rejection of application under rule 10 of the Rules
3. Acceptance of affidavit as evidence under rule 12(6) of the Rules
4. Prematurity of the writ petition
5. Appeal remedy under the Act
6. Justification of the Tribunal's orders
Analysis:
1. The petitioners sought to quash the proceedings before the Debt Recovery Tribunal (Tribunal) in O.A. No. 1012 of 1995. The suit was transferred to the Tribunal under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. The petitioners filed applications under rule 10 of the Rules, which were dismissed by the Tribunal. The High Court reviewed the facts and ruled on the validity of the Tribunal's actions.
2. The Tribunal rejected the petitioners' application under rule 10 of the Rules, which led to the filing of a writ petition. The High Court determined the prematurity of the writ petition as the Tribunal had not passed any order. Subsequently, the Tribunal rejected another application, prompting the petitioners to approach the High Court seeking relief.
3. The crucial issue revolved around the acceptance of affidavit evidence under rule 12(6) of the Rules. The petitioners argued that the Tribunal erred in accepting the affidavit when they desired to cross-examine the witness. Citing relevant case law and legal provisions, the High Court emphasized that the Tribunal should not have accepted the evidence via affidavit in such circumstances.
4. The High Court addressed the prematurity of the writ petition and the subsequent rejection of the application by the Tribunal. It highlighted the procedural errors and lack of justification for dismissing the petitioners' requests, emphasizing the need for proper application of rules and reasoned decisions by the Tribunal.
5. Discussion ensued regarding the availability of an appeal remedy under the Act. The respondents argued against entertaining the writ petition due to this alternative remedy. The High Court referred to relevant judgments, emphasizing that the existence of an appeal remedy does not preclude the court from exercising discretionary powers under articles 226 and 227 of the Constitution.
6. The High Court scrutinized the Tribunal's orders and found them lacking in legal reasoning and proper justification. It criticized the Tribunal for dismissing applications without adequate explanation or reference to relevant provisions. The High Court ultimately set aside the impugned orders, directing the Tribunal to reject the affidavit evidence and order the production of witnesses for examination.
In conclusion, the High Court's detailed analysis and rulings in this judgment underscored the importance of procedural adherence, proper application of rules, and reasoned decision-making by the Tribunal in matters related to evidence, applications, and judicial orders.
-
2002 (3) TMI 803
The appellants appealed against the order-in-appeal passed by the Commissioner (Appeals) regarding the clearance of goods with the brand name of M/s. Dee Ell Metal Industries. The Tribunal found that no investigation was conducted on other manufacturers mentioned in a statement, so the demand of duty only from the present appellants was not sustainable. Additionally, old parts recovered from the factory were confirmed to be manufactured prior to 1986, leading to the appeal being allowed and the impugned order being set aside.
-
2002 (3) TMI 802
The appeal was against the order of confiscation of a printing machine due to contravention of importation conditions. The appellant, an innocent purchaser unaware of the conditions, requested setting aside the redemption fine. The Tribunal reduced the fine from Rs. 5.00 lakhs to Rs. 1.50 lakhs, noting the appellant's innocence. Appeal allowed in part.
............
|
9911796707
