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Companies Law - Case Laws
Showing 1 to 20 of 62 Records
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2016 (2) TMI 1345
Seeking sanction of scheme of demerger - Section 391/394 of the Companies Act, 1956 - HELD THAT:- No one is opposing the scheme and the matter is non-contentious in nature - The scheme does not appear to be against the interest of the public or against the policy of the nation.
The scheme is sanctioned - petition allowed.
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2016 (2) TMI 1333
Application for considering charging of interest at the lower rate is pending consideration - HELD THAT:- The matter is disposed off at this stage directing the competent authority to decide the petitioners' application by reasoned and speaking order after given them an opportunity of hearing within three months from the date of production of certified copy of this order.
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2016 (2) TMI 1332
Seeking winding up of the respondent-company - order of admission was obtained without mentioning the relevant facts - violation of principles of natural justice - HELD THAT:- The petitioner has approached this Court to obtain a discretionary order. It also obtained discretionary order of admission on 16.03.2012 of admitting the Petition based on false averments in the Petition. It is a different matter that the order was later recalled. The indisputable fact is the petitioner had obtained an order on false averments to his knowledge. It is settled law that when a discretionary relief is obtained by misrepresentation, a dishonest litigant loses his remedy. There should be no concealment of material facts. The facts should be stated in a manner not to mislead the Court as to the true facts.
Inspite of the Courts repeatedly stating and reaffirming the principle that it is the duty of a party to bring to the notice of the Court all facts material and relevant to the issue, litigants continue in their efforts to obtain favourable orders from the court, even exparte, without disclosing all the material facts to the court. This Petition is an ideal example of how an order of admission was obtained without mentioning the relevant facts.
Petition dismissed.
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2016 (2) TMI 1318
Sanction of the Scheme of Amalgamation - Section 391 and 394 of the Companies Act 1956 - HELD THAT:- In terms of the provisions of Section 391 and 394 of the Act, and in terms of the scheme the entire undertaking, properties, rights and powers of the transferor companies, will stand transferred to and/or vest in transferee company, without any further act or deed. Similarly, in terms of the scheme, all liabilities and duties of the transferor companies shall stand transferred to transferee company, without any further act or deed - as per clause 4.12 of the scheme, the transferor companies shall stand dissolved without being wound up. The petitioners will comply with the all provisions of the scheme.
In view of the approval accorded to the scheme by the shareholders and unsecured creditors of the petitioners and, given the fact, that the there are no objections by the RD and the OL, there appears to be no impediment in the grant of sanction to the scheme. Consequently, sanction is granted to the scheme in terms of Section 391 and 394 of the Act - Petition allowed.
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2016 (2) TMI 1255
Scheme of arrangement - no proceedings under Sections 235 to 251 of the Companies Act, 1956 are pending against the transferor and transferee companies - HELD THAT:- Considering the approval accorded by the equity shareholders and creditors of the petitioner companies to the proposed Scheme of Amalgamation; the affidavit filed by the Official Liquidator not raising any objection to the amended Scheme of Amalgamation; and there being no surviving objection to the same by the Regional Director, Northern Region, there appears to be no impediment to the grant of sanction to the amended Scheme of Amalgamation. Consequently, sanction is hereby granted to the amended Scheme of Amalgamation under Sections 391 and 394 of the Companies Act, 1956.
Upon the sanction becoming effective from the appointed date of Amalgamation, i.e. 1st April, 2013, the transferor companies no. 1 to 15 shall stand dissolved without undergoing the process of winding up.
Petition allowed.
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2016 (2) TMI 1233
Maintainability of application - HELD THAT:- Let this application appear for further consideration under the same heading three weeks hence.
The Official Liquidator will continue the advertisements on the website inviting offers for sale of the properties on the basis of the order dated 4th December, 2015.
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2016 (2) TMI 1157
Writ in the nature of Certiorari quashing the order - Writ in the nature of Mandamus directing the respondents to withdraw or to recall the order dated 21st March, 2013 amongst others and a Writ in the nature of Mandamus commanding the respondent authorities to act in accordance with law and the principles of natural justice - Held that:- In this case the petitioner was offered an opportunity of hearing before “Member (IT) CBDT and CIT (IT)”. CIT (IT) is also the authority to receive the application for approval. CIT(IT) after receiving such application is required to satisfy himself as regards eligibility of the applicant. In case he is not satisfied he may also afford an opportunity of hearing to the appellant and shall thereafter make the recommendation. In this case such an opportunity was granted by the letter dated 26th February, 2013 but the writ petitioner refused to avail the opportunity on the ground that the member (IT) CBDT was not authorised to hear. The writ petitioner failed to realize that the matter shall thereafter be placed before the Ministry of Finance for passing an order either accepting or rejecting the prayer for approval. For that purpose the Ministry is entitled to make further enquiry into the matter. Provision for such further enquiry is there in Rule 9 and 10 quoted above.
In case the Ministry allows the prayer, there is no reason why any further hearing is to be given. In case it is inclined to reject the prayer, it has to disclose reasons but before it does that it is required to give an opportunity of hearing to the applicant. Therefore, hearing before the member (IT) CBDT and the CIT proposed by the letter dated 26th February, 2013 was not the end of the road. The writ petitioner by refusing to appear at personal hearing and by refusing to satisfy the CIT as regards its eligibility prevented the statutory authority from performing its job. In the circumstances there was no occasion for any further hearing before rejecting the prayer for approval
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2016 (2) TMI 1144
Transfer of shares - Held that: - issue notice to the respondent company - the respondent company is restrained, till the next date of hearing, from alienating, selling, transferring and / or creating third party interest in its immovable properties save and except in the usual and normal course of business.
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2016 (2) TMI 1137
Seeks extension of time so as to enable the whole time member of SEBI to pass an order in compliance with the orders passed by this Tribunal from time to time - Held that:- Counsel for SEBI, on instructions, states that the whole time member of SEBI would hear the appellants and pass appropriate order on before February 29, 2016 as stipulated in our order dated October 16, 2015.
In view of above we see no reason to entertain the Miscellaneous Application.
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2016 (2) TMI 1136
Change of venue of meetings of the Secured and Unsecured Creditors of the applicant Company - Held that:- Having heard learned counsel for the applicant and upon consideration of the submissions advanced, the following order is passed: Paragraph 4(i) of the order dated 07.12.2015, passed by this Court in Company Application No.374 of 2015, is modified to the extent that the venue of the meetings shall now be at AMA Hall, AMA Complex, ATIRA, Dr. Vikram Sarabhai Marg, Ahmedabad 380015.
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2016 (2) TMI 1134
Sanction of the Scheme of Arrangement - dispensation of meeting - Held that: - this Court dispensed with the requirement of convening the meeting of the Equity Shareholders, Secured Creditors and Unsecured Creditors of the petitioner Company, who had given their consent to the proposed Scheme - petition admitted.
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2016 (2) TMI 1133
Dispensation of meeting - Held that: - The meeting of the Equity Shareholders of the applicant Company is dispensed with in view of the consent letters of all the Equity Shareholders and Chartered Accountant’s certificate certifying the list of Equity Shareholders - meeting of the Secured Creditor of the applicant Company is dispensed with in view of consent letters of the entire Secured Creditors and Chartered Accountant’s certificate certifying the number of Secured Creditors - meeting of the Unsecured Creditors of the applicant Company is dispensed with in view of consent letters of the entire Unsecured Creditors and Chartered Accountant’s certificate certifying the number of Unsecured Creditors - application allowed.
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2016 (2) TMI 1132
Scheme of Amalgamation - dispensation of the meetings of the Equity Shareholders of the Applicant Company and convening the meeting of the Unsecured Creditors of the Applicant Company adhered. Other rules to be followed.
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2016 (2) TMI 1131
Scheme of amalgamation - Held that:- This Court had dispensed with holding of meetings of all the Equity Shareholders and unsecured creditors of the Scope E-Knowledge Center Private Limited (Transferor Company/ Petitioner Company I) and secured and unsecured creditors of the Quatrro Global Services Private Limited (Transferee Company/ Petitioner Company II) and further directed to convene the meeting of Equity Shareholders of Petitioner Company II. There was no secured creditor of the Petitioner Company-I.
19 equity shareholders holding 1,71,63,15,911 equity shares, out of which 1,67,08,23,411 equity shares are of the face value of ₹ 1/- each and 4,54,92,500 equity shares are of the face value of ₹ 1/- each (with 0.1 called and paid up value), amounting to ₹ 1,67,53,72,661/-, voted in favour of the scheme of Arrangement. Thus, 100% has voted in favour of the Scheme in number and value, who were present. From a perusal of the report, it transpires that the Scheme has been approved by the 100% of the equity shareholders present and voting.
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2016 (2) TMI 1128
Scheme of Arrangement, in the nature of amalgamation - Held that:- Applicant Company shall not be required to undertake the procedure of postal ballot and evoting for seeking approval from the Public Shareholders. Hence, no directions are issued by this Court in this regard.
Separate meetings of the Equity Shareholders and Secured Creditors of the applicant Company shall be convened. At least 21 clear days before the meetings to be held as aforesaid and other eligible procedures need to be adhered.
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2016 (2) TMI 1127
Scheme of amalgamation - Held that:- Dispensation of the meeting of the Equity Shareholders of the applicant Company and convening separate meetings of the Secured Creditors and Unsecured Creditors of the applicant Company to be adhered.
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2016 (2) TMI 1125
Scheme of Amalgamation allowed - adherence to directions for convening separate meetings of the Equity Shareholders resident in India and Equity Shareholders resident outside India of the applicant Company and dispensation of the meetings of the Secured and Unsecured Creditors of the applicant Company.
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2016 (2) TMI 1122
Scheme of amalgamation - Held that:- The transferor companies have consents of all equity shareholders and unsecured creditors. It is averred that the transferor companies do not have any secured creditors. This statement is taken on record.
In so far as the transferee company is concerned, it has consent of 26 out of 28 equity shareholders and 79 out of 152 unsecured creditors. In terms of value, 96.36% of the equity shareholders have given their consent. As regards, consents obtained in numbers, 92.86% of the total number of shareholders have given their consent.
In so far as the unsecured creditors are concerned, in terms of value 91.76% have given their consent which, in numbers, works out to 51.97%.As regards, secured creditors of the transferee company, all have given their consent.
Having regard to the aforesaid, the prayers made in the joint application are allowed. The requirement to convene meetings of equity shareholders and unsecured creditors of the transferor companies is dispensed with, since all consents are in place. Similarly, the prayer made for dispensing with the meetings of the equity shareholders, secured and unsecured creditors of the transferee company is allowed as well.
The reason that I am dispensing with the meetings of the equity shareholders and the unsecured creditors of the transferee company, is that, in terms of value, those who have given their consent are more than 3/4th of the total value of the paid up equity share capital and the total amount outstanding qua the unsecured creditors, as on 31.03.2015.
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2016 (2) TMI 1121
Schemes launched and carried as Collective Investment Scheme (“CIS”) u/s 11AA of the Securities and Exchange Board of India Act, 1992 - the Company had operated such CIS without registration from SEBI as mandated under section 12(1B) of the SEBI Act and regulation 3 of the SEBI (Collective Investment Schemes) Regulations, 1999 - the board of directors responsible for the conduct of the business of a company and liable for any non-compliance of law and such liability shall devolve on individual directors - Held that:- Scheme/s launched and operated by the Company through which the Company mobilizes monies from public and pools the same with respect to its activities including the schemes. The submissions regarding the claim made by the Income Tax Department and the Service Tax Department are therefore extraneous to the matter. In view of the above discussion, do not see merit in the submissions of the Company and accordingly hold that the first condition under section 11AA(2)(i) of the SEBI Act is satisfied.
Considering that the scheme offers the benefit called the “surrender value” (higher in value than the contribution of investor) and also as more than 97% of the customers have received the surrender value, and further that the Company has admittedly offered “insurance benefits” to its customers, it can be definitely said that the customer have made the contributions or payments to the schemes of the Company with a view to receive benefits/profits/income, from such scheme or arrangement. Second condition does not mention about any rates of return that would be required to classify a scheme as a CIS. It only mentions “profits, income, produce or property, whether movable or immovable from such scheme or arrangement”. Therefore, if a return is received in the form of monetary value, produce or property from a scheme, the scheme in question is said to have satisfied this condition. In view of the above, conclude that the schemes, as alleged in the SCN, satisfy the second condition under section 11AA(2)(ii) of the SEBI Act.
As can be seen, the facts of the case already decided by the Hon’ble SAT and the refundable schemes operated by the Company in the present case are similar. Therefore, it is clear that the schemes of the Company being in the nature of room nights/holiday options are CIS in terms of section 11AA of the SEBI Act. The schemes of the Company, as alleged in the SCN, are collective investment schemes in terms of section 11AA(1) and (2) of the SEBI Act. The Company has not obtained registration as required under section 12(1B) of the SEBI Act and regulation 3 of the CIS Regulations.
In view of the findings and conclusions and in exercise of the powers conferred under Section 19 of the Securities and Exchange Board of India Act, 1992 and Sections 11(1), 11B and 11(4) thereof and regulation 65 of the SEBI (Collective Investment Schemes) Regulations, 1999, hereby dispose off the SCN dated August 24, 2015 issued to the Company and directors with the following directions:
(a) Pancard Clubs Limited and its directors Sudhir Shankar Morvekar, Shoba Ratnakar Barde, Usha Arun Tari, Manish Kalidas Gandhi, Chandrasen Ganpatrao Bhise and Ramachandran Ramakrishnan, shall abstain from collecting any money from the investors or launch or carry out any Collective Investment Schemes including the scheme which have been identified as a Collective Investment Scheme in this Order.
(b) Pancard Clubs Limited and its directors Sudhir Shankar Morvekar, Shoba Ratnakar Barde, Usha Arun Tari, Manish Kalidas Gandhi, Chandrasen Ganpatrao Bhise and Ramachandran Ramakrishnan shall wind up the existing Collective Investment Schemes and refund through ‘Bank Demand Draft’ or ‘Pay Order’, the money collected by the said company under the schemes with returns which are due to its investors as per the terms of offer within a period of three months from the date of this Order and thereafter within a period of fifteen days, submit a winding up and repayment report to SEBI in accordance with the SEBI (Collective Investment Schemes) Regulations, 1999, including the trail of funds claimed to be refunded, bank account statements indicating refund to the investors and receipt from the investors acknowledging such refunds.
In case the Company has made refunds, it shall produce the proof for such repayment as directed above and also submit a certificate from Chartered Accountant as directed in sub-paragraph (d) below.
(c) Pancard Clubs Limited and its directors Sudhir Shankar Morvekar, Shoba Ratnakar Barde, Usha Arun Tari, Manish Kalidas Gandhi, Chandrasen Ganpatrao Bhise and Ramachandran Ramakrishnan, shall not alienate or dispose off or sell any of the assets of the Company, except for the purpose of making refunds to its investors as directed above.
(d) After completing the aforesaid repayments in terms of sub-paragraph (b) above, the Company, Pancard Clubs Limited shall file a certificate of such completion with SEBI, within a period of 15 days, from two independent peer reviewed Chartered Accountants who are in the panel of any public authority or public institution. For the purpose of this Order, a peer reviewed Chartered Accountant shall mean a Chartered Accountant, who has been categorized so by the Institute of Chartered Accountants of India (‘ICAI’).
(e) Pancard Clubs Limited and its directors Sudhir Shankar Morvekar, Shoba Ratnakar Barde, Usha Arun Tari, Manish Kalidas Gandhi, Chandrasen Ganpatrao Bhise and Ramachandran Ramakrishnan are also directed to provide a full inventory of all their assets and properties and details of all their bank accounts, demat accounts and holdings of shares/securities, if held in physical form.
(f) Pancard Clubs Limited and its directors Sudhir Shankar Morvekar, Shoba Ratnakar Barde, Usha Arun Tari, Manish Kalidas Gandhi, Chandrasen Ganpatrao Bhise and Ramachandran Ramakrishnan are restrained from accessing the securities market and are prohibited from buying, selling or otherwise dealing in securities market for a period of 4 years.
(g) In the event of failure by Pancard Clubs Limited and its directors Sudhir Shankar Morvekar, Shoba Ratnakar Barde, Usha Arun Tari, Manish Kalidas Gandhi, Chandrasen Ganpatrao Bhise and Ramachandran Ramakrishnan, to comply with the above directions, the following actions shall follow:
- Pancard Clubs Limited and its directors Sudhir Shankar Morvekar, Shoba Ratnakar Barde, Usha Arun Tari, Manish Kalidas Gandhi, Chandrasen Ganpatrao Bhise and Ramachandran Ramakrishnan shall remain restrained from accessing the securities market and would further be prohibited from buying, selling or otherwise dealing in securities, even after the period of 4 years of restraint imposed in sub-paragraph (f) above, till all the Collective Investment Schemes of the Company are wound up and all the monies mobilized through such schemes are refunded to its investors with returns which are due to them.
- SEBI would make a reference to the State Government/Local Police to register a civil/criminal case against the Company, its promoters, directors and its managers/persons in-charge of the business and its schemes, for offences of fraud, cheating, criminal breach of trust and misappropriation of public funds;
- SEBI would make a reference to the Ministry of Corporate Affairs, to initiate the process of winding up of the Company.
- SEBI would make a reference to the Ministry of Corporate Affairs to restrain above-mentioned noticee directors from being directors in other companies.
- SEBI shall initiate attachment and recovery proceedings under the SEBI Act and rules and regulations framed thereunder against the Company and others responsible.
This order shall come into force with immediate effect. As we note that SEBI has already initiated adjudication proceedings against the Company for launching and carrying on unregistered CIS activities and the same is pending. Additionally, this Order shall be without prejudice to the right of SEBI to initiate prosecution proceedings under section 24 of the Securities and Exchange Board of India Act, 1992 against Pancard Clubs Limited and its directors Sudhir Shankar Morvekar, Shoba Ratnakar Barde, Usha Arun Tari, Manish Kalidas Gandhi, Chandrasen Ganpatrao Bhise and Ramachandran Ramakrishnan including other persons who are in default, for the violations as found in this Order.
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2016 (2) TMI 1120
Scheme of amalgamation - dispensation of convening meetings - Held that:- Consent have been obtained from the equity shareholders of both the applicants.
In these circumstances, in so far as the equity shareholders of the applicants are concerned, the requirement to convene their meetings is dispensed with.
As far as the unsecured creditors are concerned, in the case of the transferor company 39 out of 46 have given their consent. The percentage of consents in terms of value and number is as follows: 97.44% in value 84.78% in number.
As regards the unsecured creditors of the transferee company, it is averred that 33 out of the total 35 have given their consent. A scrutiny of the documents filed alongwith joint application has revealed that one of the unsecured creditors has given its consent to the scheme prior to the scheme being sanctioned by the BOD of the transferee company. Notwithstanding the aforesaid discrepancy, the percentage of consents in terms of value and number are as follows: 97.28% in value and 91.43% in number.
Accordingly, the prayer made for dispensing with the requirement of convening meetings of the unsecured creditors of the applicants is allowed. The reason for allowing the prayer made for dispensation of the requirement of convening meetings of the unsecured creditors of the applicants, is that, the percentage of consent given, in value, in both these cases is above 75%. The joint application stands allowed in the aforesaid terms.
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