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Companies Law - Case Laws
Showing 21 to 40 of 54 Records
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2018 (3) TMI 1438
Prayer seeking re-instatement of shares in the name of the first respondent by directing the appellant to rectify the register of members - Held that:- There is absolutely no material to hold that the first respondent was put on notice, received the option form as per approved scheme and the cheque sent.
A fraud was committed against the first respondent though not by the appellant, but by some one acted on its behalf, resulting in registration of case in Crime No.57 of 1999 under Sections 406, 420 and 120 of IPC. It is also an admitted fact that the members of the first respondent was fraudulently changed. Hence, as rightly found by the Company Law Board, such a negligence on the part of the appellant cannot enure to its benefit as against the first respondent. The change of address of the first respondent was expressly unauthorised and illegal. The first respondent has taken a consistent stand throughout. It is not, as if, she has made the claim only after seeking escalation of the price of the shares.
As rightly submitted by the learned Senior Counsel appearing for the first respondent, the Scheme, as approved by the Court cannot have an application to the person, who was not being issued with even the option form as a fraud has been committed against her. Thus, the abovesaid decision approving the scheme cannot have an application to the case of the first respondent. The concession given by the learned counsel and accepted by the Court has been made applicable to those shareholders, who expressed their desire to obtain shares. Thus, the aforesaid proceedings, as rightly held by the Company Law Board, cannot bind the first respondent.
This Court does not find any complicated questions of fact involved. As discussed earlier, there is no dispute on primary facts. Though the proceedings before the Company Law Board is summary in nature, as no complicated questions of fact involved warranting a detailed trial on examination of parties, this Court is unable to accept the submissions made by the learned counsel appearing for the appellant in this regard. Company appeal dismissed.
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2018 (3) TMI 1437
Application for winding up - cheques dishonored - liability to pay the amount - Held that:- The financial accommodation/loan of ₹ 60 lakhs from the petitioner and as recorded in the letters dated July 17, 2013 and September 7, 2014 the respondent company was liable to repay the said amount to the petitioner together with the agreed rate of interest.
In order to discharge its obligation, the company had issued two post dated cheques of ₹ 60 lakhs and ₹ 10,54,110/-, respectively both dated September 1, 2015 to the petitioner and when the petitioner presented the said cheques for encashment through its bank, the same were dishonoured on the ground of insufficient funds. Until receipt of the notice under Section 138 of the Negotiable Instruments Act, 1881 from the petitioner, the company did not inform the petitioner not to deposit any of the said two post dated cheques. Even in the affidavit in opposition, the respondent company has not disclosed any document whatsoever to suggest any oral agreement between the parties for adjustment of all the amount receivable by the petitioner against acquisition of any property at Kona, in the district of Howrah. For all these reasons, as find that the defence sought to be made out by the company in this application against the claim of the petitioner, lacks bona fide and the same has no merit.
The application for winding up of the company is admitted for a sum of ₹ 73,95,617/- as mentioned in the notice dated December 1, 2015, under Section 434 of the Act of 1956, issued by the petitioner. The company is directed to pay the said sum of ₹ 73,95,617/- to the petitioner within a period of three weeks from date.
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2018 (3) TMI 1436
Oppression or mismanagement - illegal transfer of shareholding by Appellant no. 3 in favour of Appellant no. 2 - Held that:- The Respondent, by engaging in research devised products initially providing company to gain foothold in the market but that was expected of him as an employee of the status of Vice President who also held 5% shareholding. The contribution made by him for emergence of the company during its early days cannot be termed something for which he could expect a windfall. Finding recorded by learned NCLT to award ₹ 20 lakhs in favour of Respondent as a fair and reasonable amount in lieu of his professional qualification utilized during the initial days of establishment of Appellant no. 1 Company is unsustainable and cannot be supported. The claim set up by the Respondent for ‘Severance Pay’ of ₹ 26,75,000 in lieu of past services and as compensation for alleged unjustified termination is unsustainable and the same is to be rejected.
We find ourselves in complete agreement with the learned NCLT in holding that nothing has been brought on record to establish that the transfer of shareholding by Appellant no. 3 in favour of Appellant no. 2 was not enforceable in law. No financial irregularity has been brought to our notice and there is no proof of oppression or mismanagement. There is nothing on record to arrive at a finding that the transfer of shareholding by Appellant no. 3 Company in favour of Appellant no. 2 Company was legally unenforceable. Contention raised on this count is accordingly repelled.
There is no legal infirmity in the impugned order in so far as direction to Appellant no. 2 to accept the offer of transfer of 500 shares by the Respondent is concerned. As regards valuation, it has rightly been noticed by the learned NCLT that the valuation report dated 16th February 2015 has been drawn up merely for purpose of payment of stamp duty and not with the intention to determine the transfer price of shares. Be it seen that in terms of first valuation report dated 1st February, 2014 fair and reasonable price for transfer of shares was determined at ₹ 2064.74. Same was adopted by the concerned parties. In the face of same, the subsequent valuation report dated 16th February, 2015 has rightly been held as farce and undervalued to evade proper stamp duty. We accordingly find no infirmity in the finding recorded by learned NCLT that valuation report dated 1st February, 2014 at the rate of ₹ 2064.74 was to be taken into account for arriving at consideration amount of 500 shares to be transferred by the Respondent. This finding is accordingly upheld.
This appeal is partly allowed. The impugned order is set aside to the extent of directing the Appellants to disburse ₹ 20 lakhs in favour of Respondent in lieu of his professional qualifications utilized during the initial days of establishment of Company. The impugned order is maintained in so far as direction to Appellant no. 2 to accept the offer of transfer of 500 shares by the Respondent at the rate of ₹ 2064.71 per share is concerned. Respondent is also held entitled to simple interest on the cost of such shares at the rate of 9% per annum from the date of impugned order. The appeal is disposed of in the aforesaid terms
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2018 (3) TMI 1392
Refusal of registration of shares and appeal against refusal - High court dismissed the appeal - question of law - Held that:- In the instant case, there is no resolution passed by the company refusing to register the transfer of shares. Since the Company Law Board has gone into the contentions by the appellant for refusing to register transfer for all purposes, it has to be taken that those contentions are the grounds taken by the appellant for refusing to transfer the shares.
The appellant has taken several grounds in the memorandum of appeal and raised questions of law as well on these aspects. No doubt, one of the main questions of law stressed in the appeal pertains to the limitation. But on going through the several grounds taken in the Memorandum of Appeal and the questions of law raised specifically in the appeal and the grounds, it is apparent that the appellant had raised questions of law other than the question of law on limitation.
As per order 15.09.2017, the High Court, however, declined to consider the review holding that the same was beyond the scope of review and that the same can be corrected only by a superior forum.
We are afraid that the stand taken by the High Court cannot be justified in the factual background we have explained and the legal position analysed above. The appellant having taken specific grounds in the appeal and having raised questions of law regarding its right to refuse registration of transfer on sufficient ground, being a statutory appeal under Section 10F of the Companies Act, 1956, the High Court should have considered the same among other questions of law.
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2018 (3) TMI 1336
Disqualifying the petitioner as Director in the company - default in submitting returns with regard to the affairs of the said company which was statutorily required to be filed with the Registrar of Companies for a continuous period of three financial years - Held that:- The writ petitioner has stated that on account of differences and disputes with the other Directors, the company had run into difficulty and statutory compliances in the nature of filing of returns with the Registrar of Companies could not be effected. The proceedings between the petitioner and other directors in this regard are stated to be pending before the Original Side as well as criminal court of this court.
We are today informed by Ms. Maninder Acharya, ld. ASG, on instructions from Mr. Akshay Makhija, ld. CGSC; Mr. Sanjay Shorey, Director (Legal) for the Union of India and Mr. Rakesh Tiwari, Registrar of Companies that the respondents have verified the above position and accept the stated position regarding the pendency of matters before the Original Side and criminal court of this court.
It is also an admitted position that all these companies are active companies even on date. In view of this position, the respondents shall forthwith take steps for removal of the petitioner’s name from the list of disqualified directors.
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2018 (3) TMI 1294
Voluntary Winding up - Held that:- OL has scrutinized the records submitted by the Voluntary Liquidator, and has recorded satisfaction that necessary compliances of Sections 484 to 497 and other relevant provisions of the Act read with the Companies (Court) Rules, 1959 have been made, and that the affairs of the said Company have not been conducted in a manner prejudicial to the interest of its members or to the public. The OL, in these circumstances, has sought dissolution of the said Company from the date of filing of the petition i.e. 25.01.2018.
Due compliances have been observed with by the Voluntary Liquidator and the Directors of the said Company, and resultantly a satisfaction has been recorded by the OL that all necessary compliances under the Act have been met by them. In view of the same, the said Company is ordered to be dissolved with effect from 25.01.2018, i.e. from the date of the filing of the present company petition. Copy of this Order be filed by the OL with the concerned ROC within the statutory period as per the Act.
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2018 (3) TMI 1293
Attachment orders - collective investment scheme - SEBI found fault in the scheme - Recovery Officer has attached all accounts, lockers whether held singly or jointly by the petitioner - Held that:- The petitioner has been able to make out the case that the order which has been passed is non-est as it takes away a vital right conferred upon the notice/defaulter under Clause 2 of the Second Schedule of the Income Tax Act, 1961. Accordingly, the impugned order is set aside giving liberty to the Recovery Officer to issue a fresh demand notice pursuant to the recovery certificate drawn up by him as required under Clause 2 of the Second Schedule of the Income Tax Act, 1961. The only caveat being is that since moneys have already been transmitted to the Board, it will retain the same in trust till such time the Recovery Officer passes a final order after issuance of notice, giving due opportunity to the petitioner to respond to the same.
In case the Recovery Officer agrees with the contention of the petitioner that in terms of the order of the Board, he could not have been characterized as the defaulter, the logical corollary would be that the Board would have to return the moneys held in trust by it. Needless to say if the Recovery Officer reaches a contrary conclusion, then, the Board would continue to hold the moneys and use the same as mandanted by law. With the aforesaid observations, the writ petition is disposed of.
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2018 (3) TMI 1292
Compounding of offences - joint application of default - Held that:- Since all the five applications as listed above pertains to default in relation to filing of Annual Returns which is required to be filed for each year and the default is in relation to more than a year and as the same offence had been committed for the second or subsequent occasions within a period of three years and as the defaulted section being section 92 provides for fine or imprisonment or with both, for the officers in default thereby making it virtually non-compoundable by virtue of operation of section 451 read with section 441(6) of the Companies Act, 2013 this Tribunal does not have jurisdiction to compound the offence as dealt with in detail under Issue No.3 supra.
(b) Further a joint application for the default committed under the 1956 Act as well as 2013 Act filed is also not maintainable in view of the position as enunciated and dealt with under Issue No.4 supra.
(c) In any case under the 2013 Act since the maximum amount of fine prescribed for the offence of not filing annual returns is not in excess of five lakh rupees, this Tribunal lacks the pecuniary jurisdiction to entertain the compounding applications as listed above
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2018 (3) TMI 1253
Preference shareholders cannot be called 'creditors' to attend the meeting of the creditors of the company to be held under Section 391 of the Companies Act, 1956 - Held that:- As already held that petitioner cannot be a creditor and it is rather clear that redemption cannot be made except out of profits of the company which would otherwise be available for dividend or out of the proceeds of a fresh issue of shares made for the purposes of the redemption, the petition is not maintainable.
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2018 (3) TMI 1252
Scheme of Demerger - Held that:- As the suggestions made by the Appellant Companies, with regard to the 158 workmen/employees represented by the 1st Objector-Purshottam Mareshwar Vartak take care of all such employees represented by 1st Objector, in whose favour an award or order has been passed by the Court(s) of competent jurisdiction, we approve the draft suggested by the Appellant Companies as quoted at Paragraph 23 above, for incorporating it as part of the Scheme at an appropriate place, in place of the proposed Scheme with a view to safeguard the interest and rights of 158 workmen/employees of Ratnagiri Gas and Power Private Limited.
We set aside the impugned order dated 16th August, 2017 passed by the Tribunal, Principal Bench, New Delhi in Company Petition approve the Scheme with modification as noticed and quoted above and the Long Stop Date stands extended up to 31st March, 2018. It will come into effect from the date as mentioned in the Scheme and shall be given effect from the date of its notification as required to be issued under the law. The Scheme of Demerger stands approved with modification as quoted above. Both the appeals are allowed with aforesaid observations. However, in the facts and circumstances of the case, there shall be no order as to costs.
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2018 (3) TMI 1137
Disqualifications for appointment of director - constitutional validity of provision U/s.164(2)- Held that:- The operation of law cannot be stalled, diverted or made non-operative and the petitioners cannot be allowed to continue as Directors on the Board of Directors in defaulting company or even other companies and the illegality in the form of non-compliance on the part of the company in which the petitioners were admittedly the Directors, cannot be perpetuated by invoking the extraordinary jurisdiction of this Court.
As far as the question of constitutional validity of provision U/s.164(2) of the Act is concerned, this Court does not find any illegality, unconstitutionality or ultra vires in the provisions of Section 164(2)(a) or Section 167 of the Act. Merely because the provisions may operate harshly against the Directors of the defaulting company, it does not render a provision enacted with an avowed purpose of ensuring the due compliance of the provisions of the Act, foundationless or ultra vires.The writ petitions are premature and without any foundation
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2018 (3) TMI 1070
Violation of the provisions of the Companies Act, 1956 - Held that:- The respondent-SEBI initiated action under Section 19 of the Securities and Exchange Board of India Act, 1992 read with Sections 11(1), 11(4), 11A and 11B thereof against Suraksha Agrotech Industries Limited for its having issued Redeemable Preference Shares in violation of the provisions of the Companies Act, 1956.
Since the appellant was held to be the director of the said company at the relevant point of time an order was passed against him, in pursuance of which his bank account(s) were attached. The said order has been upheld by the Securities Appellate Tribunal, Mumbai.
We find that the appellant had tendered his resignation on 10th March, 2009 which was duly accepted by the said company. The courts below erred in not accepting this position.
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2018 (3) TMI 1069
Winding up petition - eligible debt - Held that:- Admittedly, the debt is bonafide disputed. Though the learned counsel for the petitioner submits that the defence is not a substantial one that cannot be countenanced for the reason that the dispute has arisen in relation to the agreement dated 21.01.2011. Series of transactions have taken place. The purchase orders, invoices placed by the petitioner though relates to a restricted period, it cannot be held to be an independent transaction other than the transactions relating to the agreement. Admittedly the contract dated 21.01.2011 contains an Arbitration Clause. Once an Arbitration Clause is provided under the agreement executed between the parties, Arbitration remedy available under the contract has to be invoked rather than pressurizing the respondent to make the payment of dues as claimed, by filing company petition for winding up of the company.
It is settled law that the company cannot be wind up when there is bonafide dispute as enunciated by the Hon'ble Apex Court in the case of MADHUSUDAN GORDHANDAS & CO. [1971 (10) TMI 49 - SUPREME COURT OF INDIA]. In such circumstances, no ground made out by the petitioner to wind up the company which is functioning and the defence is a substantial one.
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2018 (3) TMI 1068
Condonation of Delay Scheme, 2018 - Held that:- In order to facilitate this exercise, operation of the impugned list, insofar as it concerns the petitioners, will remain stayed till 31.3.2018 or, till such time the respondents take requisite decision with regard to the request of the petitioners made to them in consonance with the provisions under Section 248 (2) of the Companies Act, 2013 and under the Condonation of Delay Scheme, 2018.
Needful will be done by the petitioners within two weeks from today. In addition thereto, for the moment, respondent no.2/Registrar of Companies will also activate the petitioners' DIN and DSC.
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2018 (3) TMI 870
Disqualifying the petitioners as Directors in the company as there was default in submitting returns with regard to the affairs of the said Company - Condonation of Delay Scheme, 2018 benefit seeked - Held that:- We direct as follows:
(i) Subject to the petitioner submitting the requisite fees with the respondents within a period of two weeks as prayed, the respondents shall forthwith take steps for removal of the petitioners’ names from the disqualified directors. In case the petitioners have not submitted the prescribed form under the CODS Scheme, 2018 the same may be also submitted within the same period.
(ii) It is made clear that given the fact that the petitioners have already submitted the deficient returns it shall not be necessary for them to submit the same afresh along with this writ petition.
(iii) The orders to this effect would be posted on the website and shall also be communicated to the petitioners within two weeks from the deposit of the requisite form and fees.
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2018 (3) TMI 869
Winding up petition - non reply to statutory notice - commercial insolvency - Held that:- The submissions that the claim under petition was not a 'debt' and petitioner is not a creditor of the company but the claim is for 'damages' and there was no ascertained liability which can be proved only in a Civil Court, is not tenable and requires to be rejected. There is no question of the claim being in respect of damages or being unascertained in any manner whatsoever. On the contrary, the amount claimed, as satisfied, are admittedly ascertained and due and payable by the company to petitioner. There is no dispute in respect of the admitted outstanding of ₹ 6,07,00,000/ payable by respondent.
Respondent company did not reply to the statutory notice that was sent by petitioner to respondent company. It is settled law that where no response to a statutory notice has been made, the court may pass a winding up order on the basis that amount claimed has not been denied by the company and there is a presumption of inability to pay by the company. Where no response has been made to the statutory notice, the respondent-company runs a risk of winding up petition being allowed. By virtue of Section 434 of the Companies Act 1956 a presumption of the indebtedness can be legitimately drawn by the court where no reply to the statutory notice is forthcoming.
It should also be noted that in the affidavit in reply, there is not even a mention that the company is commercially solvent. On the contrary, there is an email dated 30th July 2014 (Exh.'B') from respondent-company to petitioner and also to Abhishek Aggrawal of Ksure that the company has been declared as nonperforming Asset and its bank account has also been frozen.
Thus as each of the companies are unable to discharge their debts, are commercially insolvent and require to be wound up. Company petitions allowed
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2018 (3) TMI 868
Application before the NCLT seeking facility of attending the Board meetings through video-conferencing - appellant contended that, sub-Rule (2)(e) puts the burden on the Chairperson to ensure that no person other than the concerned Director is attending and this would not be possible for Chairperson to ensure in video-conferencing. - Held that:- It would not be appropriate to shut-out these provisions on mere apprehensions. - NCLT took note of the fact that the Company in this matter had all the necessary infrastructure available. The learned Judicial Member took judicial notice of the physical condition of Kaziranga National Park and found that the Company had no reason not to provide the concerned facility. NCLT came to the conclusion that the provisions of Section 173 (2) of the New Act are mandatory and the companies cannot be permitted to make any deviations therefrom. NCLT directed non-applicants before it to provide the facilities as per Section 173(2) of the New Act subject to fulfilling the requirements of Rule 3(3)(e) of the Rules.
No reason to interfere with the impugned order. The impugned order must be said to be progressive in the right direction and there is no reason to interfere with the same.
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2018 (3) TMI 718
Winding up petition - Held that:- In the course of winding up of a company, it appears that any person who has misapplied, or retained, or become liable or accountable for, any money or property of the company, the court can direct the said person to repay or restore the money. May only note that under section 446 of the Companies Act where winding up order has been made, the OL takes into custody and control all the property of the company of which the company is entitled to.
It is apparent from the facts as stated above that Mr. Vinod Vij, the Ex-Director of the Company after passing of the winding up order taken money from the Batra Hospital which he was not entitled to receive in terms of the provisions of the Companies Act. He further claims to have disbursed the amount for the bonafide payment of debts of the respondent Company which he could not have done. This fact itself of having disbursed the funds to discharge the bonafide debts of the respondent Company is a doubtful contention. Further there is no merit in the plea of Mr. Vij that he was not aware that he cannot operate the accounts of the company to make bonafide payments for and on behalf of the company.
Allow the present application and pass a direction to Mr. Vinod Vij to deposit with the OL the said amount of ₹ 16,31,174/- within four weeks from today. In the interest of justice, the period for depositing the said sum is extended by eight weeks.
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2018 (3) TMI 717
Winding up petition - Held that:- The entire controversy actually centres around the invoice of the petitioner that was raised. There are available before the court two invoices, one is for ₹ 22,94,953/- filed by the petitioner. The other one is for ₹ 15,75,062/- filed by the respondent. The amount of ₹ 15,52,427/- has already been paid to the petitioner. Keeping in view the above facts, it is not possible for this court to adjudicate this disputed question of fact that have been raised by the respondent. Thu it is not possible to allow this petition.
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2018 (3) TMI 646
Benefit of the Condonation of Delay Scheme, 2018 - Held that:- This petition can be disposed of with the direction that respondents will follow the directives contained in Sandeep Singh (2018 (3) TMI 560 - DELHI HIGH COURT). It is made clear that the directives contained therein will apply to the petitioners mutatis mutandis.
The petitioners will, however, take steps both in consonance with the provisions of Section 248 (2) of the Companies Act, 2013 and under the Condonation of Delay Scheme, 2018 within a period of ten (10) days from today.
In order to facilitate this exercise, operation of the impugned list, insofar as it concerns the petitioners, will remain stayed till 31.3.2018 or, till such time the respondents take requisite decision with regard to the request of the petitioners made to them in consonance with the provisions under Section 248 (2) of the Companies Act, 2013 and under the Condonation of Delay Scheme, 2018.
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