TMI Blog2016 (12) TMI 1148X X X X Extracts X X X X X X X X Extracts X X X X ..... P No. 24/2014, CP No. 26/2014, CP No. 05 to 9/2013, 11 to 15/2013 & 17/2013, 25 to 69 & 93 to 11/2012, 20 to 29/2013, 54/2013, 55/2013, 73/2013, 74/2013 - - - Dated:- 26-9-2016 - B.S.V. Praksh Kumar, Member Judicial and V. Nallasenapathy, Member Technical For The Petitioner : Mr. Anil Kumar Poddar, For The Respondent : Mr. Firdosh Pooniwalla, Mr. Gaurav Thakur Advocates, Mr. Abhay Jadeja, Mr. Pradeep Mane, Advocates, Ms. Kamanakhetan, Mr. Dinesh Manik, Maneger, Mr. Harsh Kesharia ORDER The petitioner is common in all the CPs filed under section 163 Section 219 of the Companies Act, 1956 (hereafter referred as the old Act), though the Respondents are different, the issue presently raised by this Petitioner in all these Petitions being common and same, this Bench hereby passes this common order covering all the CPs today posted under section 163 219 of the old Act. In theses case, except CP 24/2014 filed under section 219, all other cases, Filed under section 163 of the old Act. 2. The Petitioner has today raised an issue stating that since NCLT has no subject matter jurisdiction to deal with the cases filed by him under Section 163 219 of the old Act o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iction is not only been divested from NCLT, but has also been conferred upon Regional Directors by the notification dated 31.03.2015, hence the Petitioner, relying upon this gazette notification, has sought for dismissal of this Company Petitions. 5. The petitioner says that since Section 434 of the new Act envisaging that the transferred matters shall be decided in accordance with the new Act, that there being no jurisdiction to decide the cases u/s. 163 219 of the old Act transferred to NCLT under analogous Sections 94 136, therefore, in accordance with new Sections 94 136, his cases above shall be dismissed on the ground that NCLT has no jurisdiction. 6. He has also placed an order dated 08.09.2016 passed by the Hon'ble Bench of NCLT Ahmedabad holding that since Section 136 of the new Act has not given jurisdiction to NCLT, the coordinate Bench judgement shall be followed and dismiss his petitions for want of jurisdiction. 7. Basing on the above reasons, this Petitioner, who appears in person, has sought for dismissal of all these CPs for want of jurisdiction. 8. On the other hand, the Counsel appearing on behalf of some of the Respondents, have argued that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffice of the company, be kept at any other place within the city, town or village in which the registered office is situate, if (i) such other place has been approved for this purpose by a special resolution passed by the company in general meeting, and, (iii) the Registrar has been given in advance a copy of the proposed special resolution. (1A) Notwithstanding anything contained in sub-section (1), the Central Government man make rules for the preservation and for the disposal, whether by destruction or otherwise, of the registers, indexes, returns, and copies of certificates and other documents referred to in sub-section (1). (2) The registers, indexes, returns, and copies of certificates and other documents referred to in sub-section (1) shall, except when the register of members or debenture holders is closed under the provisions of this Act, be open during business hour (subject to such reasonable restrictions, as the company may impose, so that not less than two hours in each day are allowed for inspection) to the inspection- (a) of any member or debenture holder, without fee; and (b) of any other person, on payment of such sum as may be prescr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inspection by any member, debenture-holder, other security holder or beneficial owner, during business hours without payment of any fees and by any other person on payment of such fees as may be prescribed. (3) Any such member, debenture-holder, other security holder or beneficial owner or any other person may- (a) take extracts from any register, or index or return without payment of any fee, or (b) require a copy of any such register or entries therein or return on payment of such fees as may be prescribed. (4) If any inspection or the making of any extract or copy required under this section is refused, the company and every officer of the company who is in default shall be liable. for each such default, to a penalty of one thousand rupees for every day subject to a maximum of one lakh rupees during which the refusal or default continue. (5) The Central Government may also by order, direct an immediate inspection of the document, or direct that the extract required shall forthwith be allowed to be taken by the person requiring it. 11. In the old Act under Section 163 (6), CLB is conferred with powers to give directions to a defaulting company fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers of any debentures issued by the company not less than twenty-one days before the date of the meeting. (c) if the copies of the documents aforesaid are sent less than twenty-one days before the date of the meeting, they shall, notwithstanding that fact, be deemed to have been duly sent if it is so agreed by all the members entitled to vote at the meeting. (2) Any member or holder of debentures of a company and any person from whom the company has accepted a sum of money by way of deposit shall on demand be entitled to be furnished free of cost, with a copy of the last balance sheet of the company and of every document required by law to be annexed or attached thereto, including the profit and loss account and the auditors' report. (3) If default is made in complying with sub-section (1), the. company, and every officer of the company who is in default, shall be punishable with fine which may extend to five hundred rupees. (4) If when any person makes a demand for a copy of any document with which he is entitled to be furnished by virtue of sub-section (2), default is made in complying with the demand within seven days after the making thereof, the company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lace its financial statements including consolidated financial statements, if any, and all other documents required to be attached thereto, on its website, which is maintained by or on behalf of the company: Provided also that every company having a subsidiary or subsidiaries shall, - (a) place separate audited accounts in respect of each of its subsidiary on its website, if any; (b) provide a copy of separate audited financial statements in respect of each of its subsidiary, to any shareholder of the company who asks for it. (2) A company shall allow every member or trustee of the holder of any debentures issued by the company to inspect the documents stated under sub-section (1) at its registered office during business hours. (3) If any default is made in complying with the provisions of this section, the company shall be liable to a penalty of twenty-five thousand rupees and every officer of the company who is in default shall be liable to a penalty of five thousand rupees. 12. Under Section 219 of the old Act, jurisdiction is conferred upon CLB, but under analogous Section 136 of the new Act, the jurisdiction earlier conferred upon CLB has not been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of power to CLB for giving a direction for inspection and supply at documents in respect of Sections 163 219 of the old Act has not been extended to National Company Law Tribunal in the corresponding sections 94 136 of the new Act. It is correct, as the petitioner says that a shareholder, denied of inspection and the respective documents, cannot invoke Sections 94 136 of the new Act or even Sections 163 219 of the old Act for a direction of inspection and supply of documents if denial of such right happened after notification of new Companies Act 2013. 20. For the sake of reference, the text of the sections, referred by the respondents and the petitioner, mentioned below: - Section 434(1a) of New Act 434. Transfer of certain pending proceedings: (1) On such date as may be notified by the Central Government in this behalf, (a) all matters, proceedings or cases pending before the Board of Company Law Administration (herein in this section referred to as the Company Law Board) constituted under sub-section (1) of section 10E of the Companies Act, 1956 immediately before such date shall stand transferred to the Tribunal and the Tribunal shall dispo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e at the commencement of this Act, continue to be in force, and shall have effect as if made, directed, passed, given, taken, executed, issued or done under or in pursuance of this Act; (c) any principle or rule of law, or established jurisdiction, form or course of pleading, practice or procedure or existing usage, custom, privilege, restriction or exemption shall not be affected, notwithstanding that the same respectively may have been in any manner affirmed or recognised or derived by, in, or from, the repealed enactments; (d) any person appointed to any office under or by virtue of any repealed enactment shall be deemed to have been appointed to that office under or by virtue of this Act; (e) any jurisdiction, custom, liability, right, title, privilege, restriction, exemption usage, practice, procedure or other matter or thing not in existence or in force shall not be revised or restored; (f) the offices existing on the commencement of this Act for the registration of companies shall continue as if they have been established under the provisions of this Act; (g) the incorporation of companies registered under the repealed enactments shall continue to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed. 21. Section 434 of the new Act is constituted primarily for transfer of pending proceedings, from CLB and other forums to NCLT, the provision straight away dealing with repeal and savings of old Act is section 465 of the new Act, not section 434 of new Act. Therefore, it cannot be construed that Section 434 is the governing provision to hold as to which Act is applicable to which acts. The provision is only enacted for transfer of pending litigations and proceedings from various forums to NCLT. When a separate provision is enacted solely for dealing with repeals and savings, by seeing a clause in Section 434 saying that the Tribunal shall dispose of the transferred matters proceedings or cases in accordance with the provisions of the new Act, no inference could be drawn that Section 465 meant for repeals and savings has no force. In fact, the Act 1956 has been repealed under section 465, not under Section 434, therefore, it can&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was in existence, he filed cases before all Benches, New Delhi, Kolkata, Chennai, Mumbai. These are all the Company Petitions filed before CLB spilled over to NCLT. In most of the listed Companies where he has shares, hard time starts to such companies to defend the Company Petitions filed by this Petitioner. Then Member time starts, as I, having worked as Company Law Board Member at Kolkata and Mumbai as well, heard and decided his cases, for hearing and disposal of cases. That way, I am also part of this perennial litigation the petitioner raises as adjudicator. 27. As to the order dated 08.09.2016 passed by the Hon'ble Bench of NCLT Ahmadabad, it is not an order on final hearing or final decision having regard as to whether NCLT has jurisdiction to decide matters covered under Section 219 at the old Act. Without going further in to the order of the respective Bench relied upon by the Petitioner, this Bench hereby distinguishes with the order aforementioned for the reasons that it is not a final order even in respect to jurisdictional issue, and moreover, the order of coordinating Bench will only have persuading effect, not binding on this Bench, therefore, the observation ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
