Tax Management India. Com
                        Law and Practice: A Digital eBook ...

Category of Documents

TMI - Tax Management India. Com
Case Laws Acts Notifications Circulars Classification Forms Manuals SMS News Articles
Highlights
D. Forum
What's New

Share:      

        Home        
 

TMI Blog

Home List
← Previous Next →

2018 (3) TMI 459

ted, unless screened and declared, the order in respect of winding up of the Company does not deserve to be passed. The foundation of exercise of the discretion shall be, “neglect to pay due and agreed amount”. It is observed that since the Petition raises disputed questions and the writ petitioner i.e. Respondent No.1 is not remedy-less to recover the amount, and as such, the Court refused to entertain the Company Petition. - The instant Petition thus, does not deserve to be entertained, since the Respondent Company Law Board/the Regional Director, Western Region was within its rights in registering charge of Respondent No. 1, in pursuance to the Application tendered in that regard, in exercise of Powers under Section 141 of the Companies Act, 1956. The challenge raised by the Petitioner in the instant Petition does not come within the purview of Section 141 of the Act 1956, and it would be open for the Petitioner to raise the challenge relating to the documents, its enforceability, execution or the entitlement of the concerned Respondent to recover the amount from the Petitioner or defence in respect of bar of limitation, before an appropriate forum available in law. - Writ P .....

X X X X X X X

Full Text of the Document

X X X X X X X

rms of Sale and Purchase Agreement dated 30 March 2007, came to be registered. The Petitioner is also praying for issue of writ of mandamus, directing Respondent No.2 to rectify its register of charges and delete the name of Respondent No.1 or Respondent No.4 therefrom with regard to the Petitioner-company. The Petitioner alleges that, in fact, Respondent No.1 does not have any entitlement to tender an application for registration of debt. The agreement entered into with Respondent Nos.1 and 4 is also not valid, since according to the Petitioner, it is ACTIS AFIC Credit Management Limited has executed assignment in favour of Respondent No.1 whereas, the Petitioner had the financial dealing with Respondent No.4AFIC. The unknown entity ACTIS AFIC Credit Management Limited does not have any entitlement to assign the debt in favour of Respondent No.1 and in turn, Respondent No.1 does not have any entitlement to maintain an application seeking registration of debt under Section 141 of the Companies Act, 1956. The Petitioner also contends that the Sale and Purchase Agreement dated 30 March 2007, assigning the debt in favour of Respondent No.1, being without consent of Reserve Bank of Ind .....

X X X X X X X

Full Text of the Document

X X X X X X X

red the same by assignment to Respondent No.1 on its own behalf and on behalf of ACTIS AFIC Credit Management Limited. In this view of the matter, the challenge raised by the Petitioner in respect of the Agreement of Sale and Purchase arrived at between the AFIC and Respondent No.4 does not survive. 6. The Petitioner tendered an Application under Section 141 of the Companies Act, 1956, now under Section 87 of the Companies Act, 2013 praying for following reliefs: (i) Declaration that the certificate of Registrar of Companies, Pune dated 21 June 2010 for modification of charge amounting to ₹ 1,395 lakhs assigning the charge from AFIC Limited to Deutsche Bank as null and void and no force in law; (ii) Declaration that Respondent No.2 to rectify its Register of Charges and delete the name of Deutsche Bank there from with regard to the Petitioner Company and; (iii) Declaration that the registration of charge in favour of Deutsche Bank as against the Petitioner is nonest, null and void and void-ab-initio. 7. In order to consider the controversy, it is desirable to quote the provisions of Section 141 of the Companies Act, 1956, which reads as under: "141. Rectification by Cent .....

X X X X X X X

Full Text of the Document

X X X X X X X

2012, as follows: "After considering the arguments and written submission made on both sides and without going into the merits of the case but only after considering the preliminary objection regarding the jurisdictional aspect, I am inclined to conclude that the powers vested with CLB U/s. 141 before which the petition was filed and which has since been transferred to RD, WR, Mumbai as per the Notification S.O. 1539 (E) dt. 10/07/2012 delegating the powers of the Central Government, do not allow the Regional Director U/s. 141 to grant relief sought for in the companies petition referred to in para 1 of this order. The relief for the petitioner has to be sought for before a Court of appropriate jurisdiction. The petition fails for lack of jurisdiction and accordingly the petition stands dismissed. 9. Being aggrieved by the order, the Petitioner approached the Hon'ble High Court of Bombay and filed Writ Petition No. 2037 of 2013. The Writ Petition came to be allowed and matter came to be remitted back to the Regional Director/Company Law Board with a direction to examine the case of the Petitioner and take decision on merits and in accordance with law. The Hon'ble High .....

X X X X X X X

Full Text of the Document

X X X X X X X

t be adjudicated by the Company Law Board under the provisions of Section 141 of the Companies Act, 1956 and those are required to be adjudicated by a Civil Court. 11. It is also pointed out that the cover page of Deed of Assignment dated 30 March 2007, mentions the title of document as Participation and Sale and Purchase Agreement between AFIC Limited on behalf of itself and as investment Manager as ACTIS AFIC Credit Management Limited and Deutsche Bank, London as the assignee. On the last page of the document, two parties have signed, out of which one is mentioned as AFIC Limited in its capacity as Investment Manager of ACTIS AFIC Credit Management Limited and the other party is Deutsche Bank, London. The Assignment Deed reveals that AFIC Ltd. is party to the document. 12. So far as challenge raised to the legality and enforceability of document is concerned, the same does not fall within the purview of the Company Law Board and the liberty of the Petitioner to question the validity of the document has been kept open in the order dated 29 July 2015. The Petitioner has also raised certain objections in respect of the proceedings initiated by Respondent No.1Deutsche Bank. In fact, .....

X X X X X X X

Full Text of the Document

X X X X X X X

st the condonation issue and had more concentrated on issues revolving around the validity or otherwise of the terms of assignment deed dated 15th February, 1990. There is nothing to show that the company has taken any serious objection to condonation of delay on the ground that the Board order suffered from some infirmity or perverse in any way". In Mangalore Chemicals & Fertilizers Ltd. Vs. Company Law Board [2004] 60 CLA 290/[2015] 126 Comp Cas 261 (Kar.), the Court observed: The provisions of Clause (a) of Sub-section (1) of Section 141 make it clear that the powers vested in Company Law Board under Section 141 is a discretionary power and that discretion has to he exercised by the Company Law Board judiciously and having due regard to the facts and circumstances of each case and explanation offered before it by a company and then to form an opinion on the question whether the company has made out that it could not file intimation within the stipulated time due to inadvertence or some other sufficient cause . We do not think the provisions of Section 141 arm the Company Law Board to go into the merits of the charge or satisfaction of the charge in part or in full" .....

X X X X X X X

Full Text of the Document

X X X X X X X

 

 

← Previous Next →

 

 

|| Home || About us || Feedback || Contact us || Disclaimer || Terms of Use || Privacy Policy || Database || Members || Refer Us ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.
|| Blog || Site Map - Recent || Site Map ||