|
Advanced Search Options
Case Laws
Showing 301 to 320 of 658 Records
-
2007 (9) TMI 423
The High Court of Bombay dismissed the revision application as it was filed after 4 years and 5 months, which was deemed unreasonable under the FEMA Act. The court held that the Tribunal was correct in rejecting the application due to the delay.
-
2007 (9) TMI 422
The Advocate Commissioners filed an application in the Andhra Pradesh High Court to consider the claim applications of 19 depositors who submitted Form-66 belatedly but within time. The depositors had furnished Form-66 on non-judicial stamp paper, and the Court granted permission to consider their claims without requiring them to seek condonation for the delay. The claims were for small amounts ranging from Rs. 1,000 to Rs. 5,000, with a few exceptions up to Rs. 50,000.
-
2007 (9) TMI 421
Whether an application for investigation under section 237 of the Companies Act, 1956, is an alternative to proceedings for oppression and mismanagement or rectification?
Held that:- It is beyond question that an investigation under section 237 can be directed upon subjective satisfaction of the existence or circumstances enumerated in section 237. If, however, it is shown or the Company Law Board is otherwise satisfied that such circumstances do not exist or that the facts and allegations are such that it is impossible to form an opinion as to the existence of such circumstances, an investigation is not called for. Appeal dismissed.
-
2007 (9) TMI 420
Winding up - Whether, the learned company judge was justified in admitting the said company petition (Co. P. 157 of 2005) holding that the defence taken by the appellant (respondent therein) contesting the claim of the respondent-company (petitioner therein) was not bona fide ?
Held that:- The defence taken by the appellant-company is bona fide and one of substance and it is likely to succeed in law inasmuch as the respondent-company, having admitted the factum of return of some of the materials by the appellant-company, has not placed oft record any material to prima facie substantiate its case that the value of the said returned materials was deducted by the appellant from out of the amount payable to the respondent under any specific bill prior to the supply of further materials by it to the appellant under the bills mentioned in the company petition.
In the result the impugned order is liable to be set aside and the said company petition is liable to be dismissed. Accordingly, this appeal is allowed, the impugned order is hereby set aside, and the said Company Petition No. 157 of 2005 is hereby dismissed.The respondent-company is at liberty to recover the amount claimed in the company petition from the appellant-company by resorting to such legal remedy as may be available to it under law and, in that event, the appellant-company would be at liberty to take all such defences as may be available to it under law. The appellant-company is permitted to withdraw the amount deposited by it in the said company petition
-
2007 (9) TMI 419
Oppression and mismanagement - whether the suit as framed is not maintainable in view of the provisions of sections 397 to 407 of the Companies Act ? - Held that:- Whether some of the properties of the companies have been misappropriated and transferred by defendants Nos. 1 to 6 for their personal use and could not be transferred are also such disputes which cannot be determined by the company court under the provisions of the Companies Act, 1956. For partitioning of the assets of the companies, defendants Nos. 7 to 12, after determination that they were started from the assets of common ancestor and the share of the plaintiff if dissolution of the companies is required for which invocation of the company court may be required, the civil suit for partition will not be completely barred. Therefore it cannot be inferred that the suit of the plaintiffs is barred under sections 397 to 407 of the Companies Act, 1956.
In the circumstances, the preliminary issue framed on November 14, 2002, "Whether the suit as framed is not maintainable in view of the provisions of sections 397 to 407 of the Companies Act," is decided against the defendants holding that the suit of the plaintiffs is not barred and is maintainable. The said issue is thus decided accordingly.
Since it is held that the suit is maintainable, learned counsel for the defendants seek time to file the documents. Original documents or certified copies of documents, if not already filed be filed within four weeks.
-
2007 (9) TMI 418
Winding up - Avoidance of certain attachment, executions etc. - public auction - Held that:- There was default on the part of the appellant company in repayment of the debt to PICUP pursuant to which attachment order of the property was passed which is valid in the eye of law. The property was sold in public auction in terms of the provisions of UP Public Moneys (Recovery of Debts) Act, 1972 which has become final and binding and, therefore, the learned Company Judge was justified in holding that public auction held in 1984 in favour of PICUP cannot be challenged collaterally before the Company Court inasmuch as the said auction was taken in a different proceeding altogether which has also become final and binding. The learned Company Judge rightly came to the conclusion that the challenge to the validity of the auction cannot be sustained or even entertained in a proceeding pending before the Company Judge. Remedy, if any, that the appellant had was to take up the matter under the relevant provisions and may be under the provisions of UP Zamindari Abolition and Land Reforms Act, 1950 but not under the proceeding of this nature. Remedies availed of by the appellant did not go in its favour. In this view of the matter, we are of the considered opinion that the judgment and order passed by the learned Company Judge is legal and valid. Appeal dismissed.
-
2007 (9) TMI 417
Winding up - direction of advertisement - Held that:- In the peculiar facts and circumstances of the present case, we find that the learned Single Judge, after taking into account the relevant facts and circumstances, has admitted the company petition and has directed for issuance of the advertisement. Such an order is essentially discretionary in nature and in the absence of strong enough reason, we are not inclined to differ from such conclusion. However, we feel, interest of justice would be served, while upholding the order of the learned Single Judge, by directing that the advertisement may be published after 90 days.
-
2007 (9) TMI 416
Issues:
1. Application for sanction of a scheme of amalgamation approved by shareholders.
2. Examination of the proposed scheme and absence of opposition.
3. Inter se transfers of shares and financial implications.
4. Unusual clauses in the proposed scheme.
5. Central Government's role in scrutinizing proposed schemes.
6. Importance of Central Government's observations in court proceedings.
7. Oversight in the present scheme by the Regional Director.
8. Lack of assistance from the Central Government in assessing accounting aspects.
9. Rejection of the present scheme and suggested measures for future cases.
Analysis:
1. The petitioners applied for the sanction of a scheme of amalgamation approved by shareholders, aiming to combine the businesses of transferor and transferee companies for efficient management and resource utilization.
2. The Central Government, after examining the petition and Registrar of Companies' report, did not oppose the scheme as no complaints were received. No opposition was presented during the proceedings.
3. The proposed scheme involved inter se transfers of shares, resulting in transferor companies becoming wholly-owned subsidiaries of the transferee company. Financial implications included adjustments in shareholding patterns and debiting differences in acquisition costs.
4. Unusual clauses in the scheme, such as Clause 9 in Part III, raised concerns as it reserved the right to revoke the scheme even after obtaining court sanction, potentially leading to misuse and improper implementation.
5. The Central Government's role in scrutinizing proposed schemes under the Companies Act is crucial to ensure procedural compliance, legality, and adherence to accounting standards, preventing attempts to defraud or bypass statutory requirements.
6. The Central Government's observations and objections play a significant role in court proceedings, guiding the court's decision-making process based on the scrutiny of the scheme's terms and compliance.
7. Oversight in the present scheme by the Regional Director was noted, particularly regarding clauses 13 and 9, which were critical but not highlighted in the Director's affidavit or court notice.
8. Lack of assistance from the Central Government in assessing accounting aspects was highlighted, emphasizing the need for expertise in evaluating complex financial clauses in proposed schemes.
9. The present scheme was rejected due to the identified issues, prompting the petitioners to offer to remove the contentious part of Clause 9. Measures were suggested to address the oversight and lack of assistance for future cases, emphasizing the importance of thorough scrutiny and compliance in scheme approvals.
-
2007 (9) TMI 415
Oppression and mismanagement - suppression of material information - lack of probity and loss of confidence - misrepresentation and fraud - Validity of circular resolution - Appointment of the managing director - Compliance with section 402(e) of the Companies Act, 1956 - Joint venture agreement - entitlement to get the 155 million shares in terms of the agreements - formation and recording of opinions on the three conditions mentioned in section 397(2) - pleading and proof - doctrine of legitimate expectatio.
Entitlement to get the 155 million shares in terms of the agreements - HELD THAT:- In my view, the question is whether regarding the question of transfer of the said 155 million shares by the WBIDC in terms of the agreement dated January 12, 2002, the HPL was competent or supposed to do anything ; and if the answer is in the affirmative, then it must be held that it was one of its affairs. Mr. Bimal Chatterjee, in my opinion, is right in saying that though the HPL was a party to the agreement dated January 12, 2002, it was not competent or supposed to take any decision or to do any other thing regarding the question of transfer of the said 155 million shares by the WBIDC to the CP(M)C, or to its nominee the CP(I)PL that entered into a separate agreement dated March 8, 2002, with the WBIDC. The agreement dated March 8, 2002, was not an agreement between shareholders of the HPL, the CP(I)PL that was deemed to have pledged the deemed transferred and delivered shares was not a shareholder of the HPL.
Simply because the HPL subsequently wrote letters seeking confirmation from the WBIDC whether it had transferred those shares, and seeking the IDBI’s decision regarding approval of the transfer, I do not think it can be said that the matter became an affair of the HPL. To my mind, the Board committed an error of law by holding that the question of transfer of the said 155 million shares was an affair of the HPL.
Counsel for the GoWB and the WBIDC have rightly said that in the final adjudication process the Board was not justified in recording a finding of fact taking exception to the submissions made at the admission stage. Counsel for the GoWB and the WBIDC were entitled to resist the prayer for interim relief on the basis of the case made out in the company petition by the petitioners themselves. Though the said 155 million shares had never actually been acquired by the CP(I)PL and in reality the Chatterjee group was not the majority shareholders in the HPL, the petitioners in the company petition claimed that having acquired those shares they had become the majority shareholders in the HPL. That was an absolutely incorrect statement of fact. They were fully aware of the fact that as from October 14, 2004, the HPL had become a section 619B company. Whatever may be the effect of the agreements dated January 12, 2002 and March 8, 2002, read with the agreement dated July 30, 2004 (I say so because their enforceability, validity and legality were questioned before the Board and also before me, and I do not think it is necessary for me to examine those aspects), the fact remains that the Chatterjee group never held the majority of the HPL shares.
In my opinion, it is not permissible to substitute submissions of counsel for a party or defence of a party pleaded in the affidavit, for any statutory requirement. When the act of oppression was to be pleaded in the company petition by the petitioners therein and the Board was to decide that complaint, it was not permissible for it to substitute submissions of counsel for the GoWB and the WBIDC and their defence pleaded by them in their counter for the absentee pleadings in the company petition. When there was no case of oppression pleaded in the company petition that unless the said 155 million shares were actually transferred by the WBIDC, with the IOC allotment the petitioners therein would stand converted from the majority into a minority, it was not permissible for the Board to hold that because of counsel’s submissions and defence taken in the counter and the possibility of WBIDC not transferring the said 155 million shares of its own accord, a case of oppression stood established.
The petitioners in the company petition were required to plead and prove the act or acts of oppressions, and an act or case of oppression was not to be searched out somehow by the Board ; it was just to be apparent, having been established. I am unable to agree with counsel for the Chatterjee group that the findings of oppression recorded by the Board, tying up the IOC allotment and the question of transfer of the said 155 million shares, being a pure finding of fact cannot be interfered with. I hold that the finding of the Board regarding oppression is perverse, and hence the impugned order entirely based on such finding is liable to be set aside.
The Board applied the concept ignoring many aspects of constitution and functioning of the HPL. In my judgment, on the facts it is very difficult to apply the concept of quasi partnership to the HPL, and I hold that the Board was not justified in applying the concept, particularly when for deciding the case made out in the company petition it was not necessary to decide whether the HPL was actually in the nature of a quasi-partnership only between the GoWB and the WBIDC and the CP(M)C, since the Tatas did not claim that it was in the nature of a quasi partnership, and it could not be held that the other shareholders, namely, Winstar and IT(M)L, were partners of the existing shareholders, i.e., WBIDC and the CP(M)C.
In my view, the Board was not right in making the doctrine of legitimate expectation as the sole basis for exercising its jurisdiction. Legitimate expectation of the petitioners in the company petition, if there was any, could be considered relevant only for the purpose of making order after the threshold jurisdictional questions were decided in their favour, i.e. only after forming and recording affirmative opinions regarding oppression, unfair prejudice for winding up, and facts justifying a winding up order on just and equitable ground, all required by section 397(2), the Board could consider the question of existence of legitimate expectations, if any, of the petitioners in the company petition for making an appropriate order in their favour.
It was not empowered to permit the unfair prejudice proposition and the legitimate expectation doctrine to eclipse the provisions in section 397(2), i.e., those two things could not be substituted for the three statutory conditions mentioned in section 397(2). In none of the authorities given to me it was held that only on the basis of legitimate expectation an order granting relief can be made under section 397 of the Companies Act, 1956.
Misrepresentation and fraud - The allegations of misrepresentation and fraud were made without giving any particulars whatsoever. Who made the misrepresentation and when and how it was made—nothing was said in the company petition. It has been rightly said that such a bald and vague allegation of fraud as was made in the case is not to be noticed at all. Admittedly, after discovering the alleged fraud PC did not disclose his reaction, and he rather took steps for getting the benefit of the fraud. Mr. Sarkar has explained this by saying that even after discovering the fraud PC did not react, because he was not bothered at all when the IOC was going out and the balance HPL shares of WBIDC were almost in his pocket.
Validity of Circular Resolution - Once the board decision dated November 2, 2004, was approved by the special resolution dated January 14, 2005, and the offer made by letter dated January 28, 2005, was accepted by the IOC, the only thing that was to be done was to issue the share certificates. PC was obstructing that, and for no valid reason. Although his activities exposed all concerned to threatened civil and criminal actions, he remained unmoved. The HPL’s interests were at stake. Hence it cannot be said that the chairman was unjustified in proposing the circular resolution. I find no merit in the argument that the legal opinion with connected papers were not disclosed with the proposed resolution.
Case u/s 398 of the Companies Act, 1956 - There is absolutely no reason to say that the GoWB and the WBIDC with their associates, if there were any, were conducting the affairs of the HPL in any manner prejudicial to the HPL’s interests. Whatever changes the IOC allotment and allotment of shares to the lenders in terms of the debt restructuring package and the refinancing scheme were to bring about were in the HPL’s interests, as had been decided by its board of directors from time to time. The IOC came in according to terms and conditions of the debt restructuring package. It seems to me that without any real basis for making any complaint the petitioners in the company petition referred to the provisions in section 398 There is absolutely no reason to make any order granting relief under that section. Hence the Board was fully justified in not making any order by making any reference to the provisions in section 398.
Appointment of the managing director in the HPL - I do not find any reason to say that the Board was wrong in its opinion on the question of validity of appointment of the managing director. I agree with Mr. Bimal Chatterjee that having participated in the meeting dated March 29, 2005 and voted in favour of appointment of the managing director, the petitioners concerned in the company petition were not entitled to question the appointment. As rightly said by Mr. Chatterjee, the concept of ultra vires, legality or illegality does not apply to interpretation of articles of association which are mere terms of contract and to which law of estoppel applies with full force, and if at all, question of prejudice or non-performance of contract can arise.
In my opinion, the Board was justified in not interfering with the matter chiefly on the ground that the petitioners concerned in the company petition being some of the creators of the situation were estopped from questioning the appointment. In any case, I do not see how order granting relief u/s 397 could be made, even if the HPL board acted illegally in appointing the managing director ; for that could not be considered an act of oppression.
Compliance with section 402(e) of the Companies Act, 1956 - There is nothing to show that in the course of hearing of the section 397 application for its final disposal or before making the order giving the directions, IDBI was actually noticed and heard. The Board rather presumed that IDBI would not raise any objection to the order, since before filing of the company petition it had signified its consent in writing to the transfer of the said 155 millions and all other HPL shares held by WBIDC to the CP(I)PL, the CP(M)C or its nominee. To my mind, there was no valid reason for the Board to proceed on the basis of a presumption. Hence I agree with Mr. Chatterjee that the Board made the order in clear contravention of the provisions in section 402(e). The order of the Board is liable to be set aside on this ground as well. But then there is no reason to remit the matter, since I have found that the company petition itself is liable to be dismissed on the ground that the petitioners therein failed to make out and establish any case of oppression, a must for getting relief under section 397 of the Companies Act, 1956.
In view of the rules governing the proceedings, the Board was supposed to consider only those documents which were brought on record as part of the pleadings of the parties. It has also been said that the case of the petitioners in the company petition stated in their written argument was completely different from the one made out in their pleadings. I do not think these questions require any further close examination, since I have found that on merits the order of the Board cannot be sustained.
Thus, the order of the Board is liable to be set aside and the company petition should be dismissed. Accordingly, I allow the three appeals filed by GoWB, WBIDC and IDBI, and dismiss all the eight cross-objections and the appeal filed by the petitioners in the company petition. The order of the Board (Chatterjee Petrochem (Mauritius) Co. v. Haldia Petrodhemicals Ltd.) is set aside and the company petition is hereby dismissed. All the pending interlocutory applications shall be deemed to be disposed of. There shall be no order for costs in the proceedings.
-
2007 (9) TMI 414
Winding up - Circumstances in which company may be wound up - Held that:- Having once accepted and waived the notice, the requirement of rule 28 is not necessary. In this background the facts and averments made in the petition remain uncontroverted. Even assume for a moment some defence was raised at the time of the petition but at this stage of time, the respondent-company ought to have submitted their defence as well as admitted the present petition. The court has rejected all those defence. The order dated December 16, 2004, also remains intact. In this background, in the absence of specific positive steps or any additional affidavit or fresh affidavit, I am of the view that as the averments made remained uncontroverted including the fact and demand of ₹ 26,35,00,000.
It appears that, ultimately the dispute as raised was not bona fide, the claim as such is also within the limitation.
-
2007 (9) TMI 413
Whether in the facts and circumstances of the case, the Company Law Board erred in law in granting interim relief to the respondents by directing the implementation of the resolutions for removal of the existing directors, pending disposal of the main company petition ?
Held that:- The findings given by the Company Law Board are based on valid materials and evidence on record. The Company Law Board has considered all the relevant materials, especially the extraordinary general meeting convened by the majority of shareholders and thereafter resolutions were passed by the majority of the shareholders. Thus do not find any error or illegality in the order of the Company Law Board so as to warrant interference. The order of the Company Law Board is in accordance with law and it is therefore confirmed.
Taking into consideration the facts and circumstances of the case, especially in the interest of justice, and also the allegations and the counter allegations made by both the sides and in view of the alternative submission made by the respondents, it would be more appropriate to give direction to the Company Law Board to dispose of the main petition in C. P. No. 64 of 2006 pending before it and consider the same after giving opportunity to all the parties to raise their contention, and pass orders in accordance with law on or before 31-1-2008.
-
2007 (9) TMI 412
Amalgamation - Held that:- As no proceedings under sections 235 to 251 of the Companies Act, 1956, are pending against the transferor and the transferee-companies.
Considering the facts and circumstances, convening and holding of the meeting of the equity shareholders of the transferor-company/secured creditors of the transferor-company / unsecured creditors of the transferor-company/ secured creditors and unsecured creditors of transferee company for consideration and approval of the scheme of amalgamation is dispensed with. Thus the application is allowed in terms hereof.
-
2007 (9) TMI 411
Damages for the libel - derogatory and defamatory remarks were published and a sum of ₹ 1,01,000 was claimed as damages - whether the suit instituted by the respondents is covered by section 22 of the Sick Industrial Companies Act, 1985? - Held that:- The suit filed against the petitioner arises out of tortuous liability, attributed against it. The distinction between contractual and tortuous liability is too well-known, to be elaborated. Breach of a contract gives rise to the entitlement, to recover liquidated damages or other consequences, agreed to by the parties. A tort, on the other hand, if committed, enables a wronged person, to seek redressal of his rights. Quantification of the damages, in such cases, is only a measure of retribution of the wrong in terms of money, than payment of any liquidated sum. When contractual obligations, under a lease agreement, or a negotiable instrument, are kept outside the protective umbrella of section 22(1) of the Act, the suit, filed by an individual, against a sick industrial company, a suit for damages, on account of defamation, can, by no stretch of imagination, be treated as barred under that provision.
Hence, the C.R.P. is dismissed
-
2007 (9) TMI 410
Whether on the allegations made in the complaint an actionable cause has been disclosed ? - Held that:- Warrants which may be not encashed and amount continuing to be retained by the company was a serious lacuna which stands addressed by the amendment incorporated on 15-6-1988.
The words "or the warrant in respect thereof has not been posted" have been replaced by the words "or claimed".The effect of the amendment is that wherever dividend remains unpaid or unclaimed within 42 days from the date of declaration of the dividend then alone the said amount has to be transferred to the unpaid dividend account. The amendment is not retrospective.
From a perusal of the complaint it is apparent that the complaint relates to the balance-sheet of the company as of 31-3-1981.The petition is accordingly allowed.
-
2007 (9) TMI 409
whether the criteria of objectivity stand satisfied in the present case?
Held that:- Appeal allowed. Set aside the impugned judgment of the High Court & hold that REL/HDEC (Consortium) was erroneously excluded from the second stage of bidding process. There is a mix-up of two concepts here. The concept of non-compliance of financial criteria and the impact in future years on cash flow. As stated the very purpose of ‘cash flow reporting’ is to find out the ability of HDEC to generate cash flow in future and if an important method of cash flow reporting is kept out, without any reason, then the decision to exclude REL/HDEC, is arbitrary, whimsical and unreasonable. In our view, for non-consideration of the Reconciliation Method, under cash flow reporting system, the impugned decision-making process stood vitiated.
-
2007 (9) TMI 408
Recourse to Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Ordinance, 2002 - Whether the action of the respondents in proceeding under the Ordinance which had been repealed as illegal, unconstitutional, arbitrary and opposed to the principles of natural justice?
Held that:- As per section 17 of the Act, if any person including the borrower is aggrieved by any of the measures taken under section 13(4) of the Act, the Bank may prefer an Appeal by way of an application to Debts Recovery Tribunal and against the orders of the Tribunal there is further Appeal to Debts Recovery Appellate Tribunal under section 18 of the Act. Even though there are statutory remedies available under the Act, the petitioners had not availed the same and straight away approached the Court under Article 226 of the Constitution of India and obtained interim stay. If the interim orders are continued and the Writ Petition is entertained, the purpose of the Act will be defeated.
In the light of the respective stands taken by the parties, it is clear that the Ordinance as such was not in force as on the date of the impugned proceedings. In view of the same, liberty is given to the respondents to further proceed with the matter in accordance with Law. With the above observation, the writ Petition as disposed of. It is needless to say that the further proceedings, if any in pursuance of the Ordinance cannot be further proceeded within the light of the liberty which is being given to the respondents in this regard. No order as to costs.
-
2007 (9) TMI 407
Issues Involved:
1. Limitation period for winding up petitions.
2. Tests for admission and advertisement of a creditor's petition for winding up.
3. Justification for admission and advertisement of the company petition.
Analysis:
1. Limitation Period for Winding Up Petitions:
The court examined whether the relevant date for computing the period of limitation is the date of presentation of the petition or the date of hearing for its admission and advertisement. The court held that the relevant date is the date of presentation of the petition. It emphasized that a petition for winding up, filed within the prescribed period of limitation, remains valid even if the debt becomes time-barred by the date of hearing. The court cited various precedents, including *Modern Dekor Painting Contracts P. Ltd. v. Jenson and Nicholson (India) Ltd.*, to support this view. The court concluded that the petitioner's claim was within the prescribed period of limitation at the time of filing the petition.
2. Tests for Admission and Advertisement of a Creditor's Petition for Winding Up:
The court outlined several tests to determine whether a winding up petition should be admitted and advertised:
- Whether the petitioning creditor is owed an ascertained sum of money.
- Whether the debt is within limitation.
- Whether the company's defense is bona fide or a mere moonshine.
- Whether a presumption arises that the company is unable to pay its debts.
- Whether the company is commercially insolvent.
The court emphasized that a winding up petition is an extreme remedy and should be resorted to sparingly. It noted that the machinery for winding up should not be used merely as a means for realizing debts.
3. Justification for Admission and Advertisement of the Company Petition:
The court analyzed the facts of the case to determine whether the petition should be admitted and advertised. It noted that the petitioner claimed dues for 77 RIM handsets provided under the "Corporate Scheme," while the respondent claimed commission for 936 RIM handsets sold under the "Monsoon Hungama Scheme." The court found that the respondent's defense was bona fide and not a moonshine, as there was evidence of mutual obligations and disputes regarding the amounts due. The court also observed that the respondent's balance sheet indicated financial stability, with reserves exceeding Rs. 4.21 crores and net current assets exceeding Rs. 21 crores. The court concluded that the respondent was not commercially insolvent and could meet its debts as they accrued. Consequently, the court dismissed the petition, stating that the remedy for recovering the debt lies in a civil suit rather than in summary winding up proceedings.
Conclusion:
The court dismissed the winding up petition, emphasizing that the petitioner's claim was within the limitation period, but the respondent's defense was bona fide and substantial. The court found no evidence of the respondent's commercial insolvency and ruled that the appropriate remedy for the petitioner was to file a civil suit for debt recovery.
-
2007 (9) TMI 406
Oppression and mismanagement - whether on an application for amendment of the petition in proceedings under sections 397 and 398 of the Companies Act, 1956, the Company Law Board may permit all the amendments to be incorporated without assigning any reason therefor?
Held that:- The order impugned does not show inadequacy of reasons, it has no reasons at all. And in giving no reasons in making the order, a question of law has arisen that can be taken up under section 10F of the Act.
The order impugned is set aside. The Company Law Board shall hear the matter afresh and, if legal submissions are made and "plethora of cases" are placed, they will be referred to and discussed in the order that may be passed upon the fresh consideration of the matter following this remand.The Company Law Board should endeavour to dispose of the amendment application within a period of six weeks from the date of deposit of an authenticated copy of this order.
-
2007 (9) TMI 404
Winding up - whether advertisement in question was not covered by rule 96? - Power of Tribunal/CLB on hearing petition - Held that:- In the facts and circumstances, it cannot be said on the basis of the material of the company petition that the appellants-petitioning creditors had any groundless or baseless claim or that the winding up petition was filed to coerce the company into admitting the groundless claim. In fact, the respondent-company had already admitted the claim of the appellant-petitioning creditors to the tune of ₹ 19.87 crores in their correspondence prior to the statutory notice.In view of the above findings, it is not necessary to express any opinion on the first contention of the appellant that the advertisement in question was not covered by rule 96. We have proceeded on the demur that it was.
We are not inclined to accede to the request that this court may remand the matter to the learned company judge for deciding the question of abuse of the process of the court after the respondent-company files a reply before the learned company judge on merits, because the company petition was filed in the year 2002 and the present OJ Appeal was filed in the year 2003; the dues are in respect of commercial advertisements which were telecast at the request of and for the benefit of, the respondent-company, between November 2001 and June 2002 and the respondent-company did not avail of the opportunity given by this court during pendency of this appeal to file its counter-affidavit on merits. It is, therefore, high time that the Company Petition No. 201 of 2002 is heard on merits at the admission stage at the earliest. The four years that the respondent-company has earned in this manner is also sufficient not to pass any further order of costs in their favour.
Allow this appeal and set aside the judgment and order dated April 25, 20031, of the learned company judge dismissing Company Petition No. 210 of 2002. The company petition shall accordingly stand restored to the file of the learned company judge taking up company petitions as per the present roster.
-
2007 (9) TMI 403
Contempt of Courts - willful disobedience and gross violation of the orders of the Company Law Board, Additional Principal Bench, Chennai dated 18-7-2005 - Held that:- Open defiance of the order of the Company Law Board, in continuing demolition of the superstructures even till 29-7-2005 more than ten days after the restraint order of status quo dated 18-7-2005, is a contempt of such a nature as to have substantially interfered with the due course of justice for which imposition of the sentence of fine alone would not meet the ends of justice. Such flagrant violation of the orders of the Company Law Board must be dealt with sternly. The fifth respondent is sentenced, under section 12(1) of the Contempt of Courts Act, to undergo simple imprisonment for a term of two months and with fine of ₹ 2,000. In accordance with section 12(3), read with rule 32(1) and (3) of the Contempt of Courts Rules, 1980, the fifth respondent shall be detained in civil prison for a period of two months. His subsistence allowance is fixed at ₹ 2,500 per month. The petitioner herein shall deposit a sum of ₹ 5,000 in the High Court Registry, within one month from the date of receipt of a copy of this order, towards subsistence allowance for the two month period the fifth respondent is required to be kept in civil prison. The amount so deposited shall be defrayed towards the subsistence allowance payable to the fifth respondent.
The contempt case is allowed with costs quantified at ₹ 3,500 to be paid by the fifth respondent to the petitioner herein.
............
|
9911796707
