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Showing 101 to 120 of 1320 Records
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2020 (9) TMI 1222
Dishonor of Cheque - intent to clear the debt of the Operational Creditor or not - default and noncompliance of the order of this Tribunal - HELD THAT:- Admittedly, the cheques which were issued under the MoU have bounced and there is default on the part of the Corporate Debtor which breached the MoU/Agreement filed before this Tribunal. Submissions of both the sides show that in spite of the MoU, the Operational Creditor did give time to the Corporate Debtor to make payments and did not immediately rush to deposit the cheques. The cheques when ultimately deposited got dis-honoured.
There are no reason why the Application as filed by the Operational Creditor should not be allowed. On the face of the record, the Corporate Debtor is unable to clear its dues. Now, when the unlock periods are going on, still the Corporate Debtor is not in a position to say that the debt will be paid by a particular date. Though learned Counsel for Original Appellant for Corporate Debtor seeks one more opportunity to pay and claiming that Annexure-R3 of Reply shows it had moved Mentioning Application to extend time to pay, no sincerity to pay ₹ 1.46 Crores is demonstrated. Again, in a settlement between parties, this Tribunal will not on its own extend periods, not agreed.
Application allowed.
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2020 (9) TMI 1221
Contempt application for invoking Section 425 of the Companies Act 2013 for contempt jurisdiction against the Respondents - seeking direction to Respondents to pay advocate fees for the services rendered by the applicant during CIRP period to the respondent - HELD THAT:- Contempt jurisdiction is an extraordinary jurisdiction, not exercisable by ordinary courts/ Tribunals, unless it is specifically conferred upon. NCLT, when it deals with IBC matters, it is Adjudicating Authority created by IBC, no way connected with Companies Act, and the jurisdiction is not interchangeable between Adjudicating Authority under IBC and the Tribunal under Companies Act 2013, except to the extent law permits.
Contempt jurisdiction is in fact a jurisdiction conferred upon Constitutional Courts, which is hardly percolated down. It is given in a few enactments, it cannot be stretchable in the way we perceive, therefore it is made clear that IBC is devoid of contempt jurisdiction, accordingly this Application is dismissed leaving it open to the Applicant to seek remedy through recourses available.
Contempt application dismissed.
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2020 (9) TMI 1220
Seeking approval of Resolution Plan - HELD THAT:- The applicant is seeking relief which was not considered by the Bench at the time of approval of Resolution Plan by this Bench as well as denied any relief by the Income Tax Authority and hence, they approach this Bench by filing present application.
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2020 (9) TMI 1219
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - pendency of the claim filed by the applicant in other CIRP proceeding - time limitation - HELD THAT:- Mere plain reading of the provision shows that Section 18(1) of Limitation Act says that Where, before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed.
Whether the acknowledgement of debt can change the date of default in view of Section 18 of the Limitation Act or not? - HELD THAT:- Specially Sub Section 18(1) of the Limitation Act, which says that the Where, before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed.
Article 137 of the Limitation Act says that if there is no period is prescribed then an application or suit shall be filed within 3 years when the right to apply accrues, it means a person may file an application within 3 years from the date when the right to apply accrues and here in this case, the right to apply accrues, when the default has occur and the NPA was declared on 31.12.2015, therefore, right to file an application under Section 7 accrues within 3 years from the date of NPA i.e. on 31.12.2015 but when we shall consider the Section 18 in which it is clearly mentioned the word property or right, which means the acknowledgement in respect of property or right, if it is made in writing then the period of limitation shall be computed from the date when the acknowledgement in writing was made.
As per the NPA the period of limitation comes to an end on 30.12.2018 but prior to that an acknowledgement of debt was made in writing by the Corporate Debtor on 18.07.2017.
Under Section 18 of the Limitation Act, if the acknowledgement of debt in writing and signed by the person before the expiration of prescribed period of limitation then the limitation shall be computed from the time when the acknowledgment was so signed and in this case, the acknowledgement was signed by the Corporate Debtor on 18.07.2017, therefore, the limitation runs from that day and the present application was filed by the corporate Debtor on 04.03.2020 hence, the application is within time.
Whether during the pendency of the claim filed by the applicant in other CIRP proceeding, this application is maintainable or not? - HELD THAT:- Section 12A is not applicable, so far the claim filed by the person before the IRP is concerned. The decisions upon which, the petitioner has placed reliance, in our considered view the facts of that decision is different from the facts of the case in hand, therefore, none of the decision will help the respondent to substantiate its submission that a person can withdraw its claim only under Section 12A of the IBC with the approval of the 90% of the member of the CoC - there are no option but to hold that there is no force raised on behalf of Ld. Counsel for respondent that the petition filed by this applicant is not maintainable because he had already filed its claim before the RP in the CIRP initiated against the parent company of the respondent i.e. EIEL.
The applicant has succeeded to establish that there is a financial debt and Corporate Debtor is in default in making the payment of that financial debt, the application is complete - Application admitted - moratorium declared.
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2020 (9) TMI 1218
Retrenchment of 297 employees by Press Trust of India - Seeking reinstatement with back wages and consequential benefits - retrenchment on the ground that there was no work for three categories of employees namely Attender, Transmission and Engineering - Section 25-F of the Industrial Disputes Act - HELD THAT:- It is well settled that the parties have to amend their pleadings to incorporate new facts and documents. This Court depreciates the manner in which the new averments and documents beyond pleadings are sought to be filed without permission of this Court, at such a belated stage, for which no explanation has been given. The new pleadings and documents filed by the petitioners on 25th August, 2020 are not even supported by an affidavit. There is merit in the respondent's submission that the documents now filed do not appear to be genuine on various grounds inter alia that 141 letters of retrenched employees in W.P.(C) 10596/2018 are all undated; the signatures of many retrenched employees do not tally with their signatures in their service record; the signatures of 35 employees in their letters in W.P.(C) 10596/2018 do not match with their letters in W.P.(C) 10605/2018; the petitioners have not filed any requisition for calling the general body meeting, notice of meeting, agenda notes of meeting.
The petitioners have to lead evidence before the Industrial Tribunal to prove these disputed documents in accordance with law. The new averments and documents filed by the petitioners along with the written submissions dated 25th August, 2020 are beyond pleadings and therefore, the same are not taken on record - this Court is of the view that both the petitioners have failed to show the authority to file the writ petition on behalf of 297 retrenched employees either in the writ petition or the documents filed along with the writ petition as on the date of filing of these writ petitions.
Both the writ petitions are dismissed on the ground that the retrenched employees have statutory remedy under the Industrial Disputes Act and no 'Exceptional circumstances' have been made out by the petitioners. The retrenched employees are at liberty to avail appropriate remedies available to them under the Industrial Disputes Act - petition dismissed.
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2020 (9) TMI 1217
Declaration of account as NPA or not - it is submitted that no account shall become NPA atleast for a period of two months - HELD THAT:- At the request of the Mr. Tushar Mehta, learned Solicitor General, the matter is adjourned for 10.09.2020.
The accounts which were not declared NPA till 31.08.2020 shall not be declared NPA till further orders.
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2020 (9) TMI 1216
Seeking grant of regular/interim bail - petitioner is suffering from multi-system ailments - HELD THAT:- Keeping in view the medical condition of the petitioner, the petitioner is admitted to interim bail for a period of 10 weeks, on his furnishing a personal bond in the sum of ₹ 1,00,000/- with one surety of the like amount to the satisfaction of the concerned Jail Superintendent/Duty MM and subject to the conditions imposed.
Petition allowed.
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2020 (9) TMI 1215
Dishonor of Cheque - prosecution of Directors and others for vicarious liability - Section 141 of the Negotiable Instruments Act - HELD THAT:- In this case, the statutory notice was not served on the petitioner, since the petitioner was resigned from A1 company on 01.08.1998 and the same was accepted in the board meeting, which was held on 08.09.1998. To prove the resignation, the petitioner submitted Form 32, dated 11.09.1998 issued by the Registrar of Companies, Chennai. Admittedly, the cheque was presented for encashment on 03.09.1998 and the statutory notice was issued on 11.09.1998. In the sworn statement, it is stated by the respondent that the notice was received by A1 company on 14.09.1998 and as regards, notice sent to other accused, it was returned for the reason that no such person available in the noticee address, which fortifies and confirms that the petitioner was resigned from A1 company on 01.08.1998.
It is not in dispute that the petitioner is a Director of A1 company and in the complaint lodged by the respondent except paragraph No.7, nothing is averred against the petitioner. It is seen from the paragraph No.7 of the complaint that except mentioning the magical word that the accused are incharge of the management and affairs of the company, there is nothing more - this Court finds that there is no factual averments to show how the petitioner is responsible for the business and conduct of A1 company to invoke provision under Section 141 of the Negotiable Instruments Act.
Petition allowed.
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2020 (9) TMI 1214
Authorizing Serious Frauds Investigation Office (SFIO) to institute proceedings - Section 241 of the Companies Act, 2013 - HELD THAT:- Since the affairs of operation of NSEL have been suspended for almost over six years, prima facie, it would be difficult to accept that a petition under Section 241 (2) of the Companies Act, 2013 would be maintainable. Mr Ahluwalia states that he requires instructions to respond to this contention. He states that he would require some time for the said purpose as the concerned officers are currently not available because two of them have been diagnosed positive for Covid-19.
At the request of Mr Alhuwalia, list on 15.10.2020.
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2020 (9) TMI 1213
Seeking issuance of directions against the respondent not to threaten the applicant or the security personnel at the site of the corporate debtor and not to enter into the premises of the land belonging to the corporate debtor - Section 19(2) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The respondent and their men or anybody claiming through them shall not create any hindrance or obstacle to the applicant or any personnel working under his control in any manner. The respondents cannot claim any right on the common road. If the respondent or its employees or anybody claiming through them create any disturbance or hindrance to the Resolution Professional or to any of his staff or security personnel in any manner, he may approach this Authority by filing an appropriate application for appropriate directions.
Application disposed off.
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2020 (9) TMI 1212
Reopening of assessment u/s 147 - No notice issued u/s 148 - HELD THAT:- As the assessee while filing of its return has made a note therein it was mentioned that no notice u/s 148 was served upon the assessee and moreover, the assessee have also served a letter to the revenue thereby categorically mentioning that no service of notice was effected upon the assessee and even the revenue in his reply dated 07/11/2017 has no where mentioned that notice u/s 148 was ever served upon the assessee - merely participation of the assessee in the proceedings is not a waiver to the service of notice u/s 148 upon the assessee. As per record, prior to completion of reassessment, the assessee has raised a categorical objection that he has not been duly served in accordance with Section 148 of the Act. Therefore, the ‘proviso’ to Section 292BB is attracted and Revenue cannot take advantage of the main portion of Section 292BB.
We found that the revenue has failed to bring on record any positive evidence to prove that the notice u/s 148 of the Act was served upon the assessee whereas the assessee has successfully placed on record letter dated 07/11/2017 issued by the department wherein it has no where been mentioned that the notice u/s 148 was ever served upon the assessee - we can safely conclude that there was no ‘proper service’ of notice u/s 148 of the Act was effected in the present case before completion of reassessment u/s 147 r.w.s 143(3). Therefore, we set aside the orders of the lower authorities and quash the proceeding u/s 148 - This ground of appeal is allowed.
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2020 (9) TMI 1211
Benami Transactions - stay proceedings - third party interest created in regard to the properties in question - HELD THAT:- In view of the fact that the appeal is still pending, the interim order that has been passed by the Division Bench [2021 (6) TMI 1065 - GUJARAT HIGH COURT] will continue to operate. There shall be stay of the impugned order to this extent.
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2020 (9) TMI 1210
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - default in payment of conducting fees, water bills, electricity bills and property tax - Operational creditors or not - Operational debt or not - existence of debt and dispute or not - HELD THAT:- When the enhanced rent payable under a tenancy agreement by the Corporate Debtor itself does not amounts to an Operational Debt, the municipal taxes and the Electricity Bills payable by Corporate Debtor under a business conducting agreement/lease agreement stands on lesser footing and cannot be considered as Operational Debt. Therefore, there are no hesitation in holding that the above amounts claimed by the Operational Creditor does not fall within the definition of Operational Debt and the petitioner cannot be termed as “Operational Creditor”.
Time Limitation - HELD THAT:- The company petition is filed on 12.03.2018. All the claims prior to 12.03.2015 are barred by limitation, since we are dismissing the above Company Petition on the very nature of the claim and the locus of the applicant, we are not dealing with each and every contention raised by the respondents.
The Company Petition is not maintainable before this Tribunal and is liable to be dismissed - petition dismissed.
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2020 (9) TMI 1209
Seeking quashment of FIR at the investigation process - activities promising return of profits upon soliciting deposits in the form adviser fee / royalty - cognizable offence under the provisions of PID Act - HELD THAT:- The police in the present case has registered FIR not on the basis of complaint of a victim and now seeks to find whether there are any victims or not, which is absolutely against the ethos of investigative processes.
The provisions of IPC and PID Act are not attracted prima facie in this case, that there is an statutory bar against taking cognizance by Court for any such offence, which is in the domain of SEBI Act, 1992, which requires complaint to be filed by SEBI Board. This case is squarely relates to breach of provisions of SEBI Act, 1992 and SEBI Regulations, 2013 and only Special Court is empowered to take cognizance on the basis of complaint filed by SEBI Board. The police was not authorized to register an FIR in such case because there is a specific statutory bar in such matters.
What the police could have done was that bring to the notice of SEBI Board the alleged violation being committed by the applicant Company. After providing vital information and inputs to the SEBI Court, the matter would have been looked into by SEBI Board only and appropriate complaint could have been filed by SEBI Board before the competent Special Court - instead of doing so, the police has embarked upon registration of FIR in such a case and by doing so, has travelled beyond the scope of its competence and jurisdiction.
Application allowed.
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2020 (9) TMI 1208
Seeking grant of anticipatory bail - Used Foreign Origin Printing Machine - import of machinery for re-export after repairing and/or refurbishing - applicant was sufficiently interrogated by the DRI and yet no complaint is registered against the applicant - power under Section 438 of the Code to be exercised or not - HELD THAT:- It appears that M/s. PVD Enterprise imported 211 numbers of Used Foreign Origin Printing Machine for repairing and refurbishing. 114 numbers were imported vide Bill of Entry No.4361330 dated 05.08.2019 and 97 numbers were imported for which they filed Bill of Entry No.4814912 dated 07.09.2019.
In M/S PVD ENTERPRISE VERSUS ADDITIONAL DIRECTOR GENERAL [2021 (9) TMI 834 - GUJARAT HIGH COURT] preferred by M/s. PVD Enterprise, affidavit in reply was filed by the respondent no.2 before this Court on 10.01.2020. The dispute between M/s.PVD Enterprise and the respondent no.2 is pending before this Court on judicial side in respect of machine imported for the purpose of repairing and refurbishing. In connection with this dispute, inquiry was initiated by the department and the applicant was issued summons, time and again, to remain present before the office.
The Hon’ble Apex Court, in the case of SIDDHARAM SATLINGAPPA MHETRE VERSUS STATE OF MAHARASHTRA AND OTHERS [2010 (12) TMI 1085 - SUPREME COURT], has held that under Section 438 of the Code, it is not extraordinary in the sense that it should be invoked only in exceptional or rare cases. A great ignominy, humiliation and disgrace are attached to arrest. In cases where the Court is of considered view that the accused has joined investigation and he is fully cooperating with the Investigating Agency and is not likely to abscond, in that event, custodial interrogation should be avoided and anticipatory bail should be granted which after hearing public prosecutor, should ordinarily be continued till end of the trial. There cannot be any dispute regarding the law settled down by the Hon’ble Apex Court or any observations made in the judgment - In the similar facts of the case on the identical issue, the Hon’ble Apex Court has set aside the order of the Hon’ble High Court directing the custom authorities restraining to arrest a person when summons under Section 108 of the Customs Act for recording the evidence was issued.
Application dismissed.
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2020 (9) TMI 1207
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - share purchase agreement with the Corporate Debtor - existence of debt and dispute or not - HELD THAT:- This Tribunal admitted the application appointing Mr. Amier Hamsa Ali Abbas Rawther as the Interim Resolution Professional.
Now the Corporate Debtor namely M/s Sree Bhadra Parks and Resorts Limited filed an application under Rule 11 of the NCLT Rules to recall the order passed by this Tribunal and permit them to settle the matter. Along with the application “Form FA” for withdrawal of Corporate Insolvency Resolution Process has been filed, duly signed by the applicant stating that on 26.8.2020 settlement has been arrived for a total sum of ₹ 2,25,00,000/- as full and final settlement of the entire claim between the Corporate Debtor M/s Sree Bhadra Parks and Resorts Limited.
In view of the settlement arrived between the parties by filing Form FA before this Tribunal and that the IRP stated that he has received his fees, the application stands disposed of.
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2020 (9) TMI 1206
Deduction u/s 80IA - apportionment of common expenses - Whether CIT (A) erred in not allowing full deduction under section 80IA and should have appreciated the fact that separate books of accounts were maintained for each windmills and assessee has filed Profit & Loss accounts of each windmills separately in Form IOCCB - HELD THAT:- As submitted by assessee that as per para 5.2 of the order of CIT(A), it is noted by CIT(A) has in Assessment Year 2008-09 in assessee’s own case, the Tribunal has restored the matter back to the file of CIT(A) for a fresh decision. At this juncture, the Bench wanted to know about the final outcome in Assessment Year 2008-09 after such direction of the Tribunal. In reply, it was submitted by learned AR of the assessee that the issue is still pending before CIT(A). Then, at this juncture, it was observed by the Bench that in that situation, the matter in the present year should also go back to CIT(A) for a decision simultaneously with a decision in Assessment Year 2008-09. Both the sides agreed to this proposition put forward by the Bench.
We set aside the order of CIT(A) and restore the matter back to his file for a fresh decision simultaneously with decision on this issue in Assessment Year 2008-09 if it is still pending before CIT(A) because in that year, the matter was remanded by the Tribunal to the file of CIT(A). Assessee’s appeal is allowed for statistical purposes.
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2020 (9) TMI 1205
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - Appeal under Section 37 of Arbitration and Conciliation Act, 1996 was pending challenging the award, on the date on which the operational debt became due against the Corporate Debtor, or not? - HELD THAT:- From the plain reading of un-disputed facts in this proceeding, it is clear that on the date on which the Corporate Debtor was served with demand notice under Section 8 of the Insolvency and Bankruptcy Code, 2016 or on the date on which the application is filed against the Corporate Debtor, no arbitration proceedings was pending challenging the award.
Operational debt become due and payable on 29.02.2012 i.e on the date of which the Learned District Judge confirmed the award under Section 34 of A & C Act. The Corporate Debtor filed Appeal under Section 37 of the Act. It was dismissed in default. 90 days thereafter, on 14.02.2020, Operational Creditor gave the Corporate Debtor notice under Section 9 of the Insolvency and Bankruptcy Code, 2016. On 28.02.2020 - the operational creditor sent a demand notice three months after the Corporate debtor's appeal was dismissed by Hon'ble high Court. As soon as the Corporate Debtor received the demand notice, its officers swung into action and get the appeal restored. Meantime, the operational creditor had filed this application. It appears from record that the officers of the Corporate Debtor using the proceedings under the law either to delay or to avoid the legitimate dues of the Corporate Debtor on one or the other ground.
Operational Creditor has established that the Corporate Debtor committed default in paying the operational debt of ₹ 5,62,01,258/- inspite of receipt of demand notice. There was no dispute pending (by way of arbitral proceeding or otherwise) on the date on which the default occurred or on the date on which the application is filed to initiate Corporate Insolvency Resolution Process of the Corporate Debtor - Also, no disciplinary proceeding is pending against the proposed Insolvency Resolution Professional. It is not in dispute that the corporate debtor did not pay the operational debts.
Application admitted - moratorium declared.
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2020 (9) TMI 1204
Seeking an interim direction, to Respondent No. 1, to furnish a bank guarantee - discontinuance of payment of running accounts bills submitted by the petitioner, consequent breach, by Respondent No.1, of Clause 3.3 of the sub-contract agreement and discontinuance of the allocation of work to the petitioner - Section 9 of the the Arbitration and Conciliation Act, 1996 - HELD THAT:- While Section 9(1)(ii)(b) of the 1996 Act unquestionably empowers the court to secure the amount in dispute in the arbitration, any such direction has, in principle, to conform to the discipline of Signature Not Verified Digitally Signed. Order XXXVIII Rule 5 of the Code of Civil Procedure, 1908. Further, it is not enough for the petitioner to establish a prima facie case, balance of convenience and irreparable loss; additionally, the petitioner would have to establish, on facts, that, were security not to be directed as prayed, the arbitral proceedings were likely to be frustrated. Section 9 is not intended to operate as an alternative to Section 17.
Prima facie, the concern expressed by Mr. Ravi Ranjan is purely in the realm of apprehension and conjecture at present. It Signature Not Verified Digitally Signed hinges on several imponderables, with no supportive material forthcoming from the record - that apart, the mere perceived difficulty in the enforcement of a possible arbitral award, which might ensue in favour of a party, cannot, prima facie, be a ground to direct the furnishing of security, in a proceeding under Section 9 of the 1996 Act.
Various notices to be issued - Renotify on 19th November, 2020.
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2020 (9) TMI 1203
Reopening of assessment u/s 147 - assessment carried out under CASS - valuation of the property not accepted - Objection to the Valuation Report submitted by the Assessee - HELD THAT:- There is nothing on record to establish that save and except for the Valuation Report, alone, there is any other material even prima facie, indicating application of mind by the Assessing Officer in arriving at its conclusion, necessitating reopening of assessment carried out under CASS.
The difference in valuation of the property in the two reports is also not substantial. However, we may not be misunderstood of our judgment to be clouded by such fact. The Assessee is a salaried person. He had constructed a residential house on a plot owner by his wife. During the course of proceedings, in fact much prior to the passing of the order accepting his return, he had submitted the Valuation Report from an approved Valuer. The same was never objected to or rejected. Right from day one, he had disclosed full particulars, what took the official valuer more than ten months to value the property and why despite the Assessee having submitted his Valuation Report dated 10th of January, 2005 request for calling Valuation Report was made only on 19th of October, 2006 and why the report reached the officer on 5th of November, 2007 are all questions which are not answerable from the record.
As such, to our mind, without meeting the essential ingredient of the officer having applied his mind to the various material, necessitating reopening of assessment, is missing in the instant case.
Hence, in the given facts and circumstances, we quash and set aside the impugned order - Decided in favour of assessee.
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