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Showing 281 to 300 of 654 Records

• 2007 (11) TMI 423
  

  Condition of deposit - legal right accrued to the writ petitioner to get the confirmation of sale and the stand taken by the Bank that the authorized Officer is different from the secured creditor and subject to the confirmation of the secured creditor only, the sale had been conducted cannot be said to be a sustainable contention - Held that:- Here is a case where the secured creditor on verification found the defect and was not inclined to confirm the same. This action of the secured creditor cannot be said to be not in accordance with law, since the publication made and also the Rules governing the field would clarify the situation.

  It is no doubt true that in a particular given case, the Court may arrive at a conclusion that the action is arbitrary, when the Banking Institution is going back on totally untenable and unsustainable ground. When a particular confirmation may result in certain other ancillary litigations and when the secured creditor is not inclined to confirm the sale, the same cannot be found fault. Even otherwise, this Court is of the considered opinion that positive directions as prayed for normally cannot be issued by a writ Court, especially when the Banking Institution had taken such a stand in the counter affidavit filed specifying the Rules and also the conditions made in the publication in this regard. Hence, this Court is thoroughly satisfied that the writ petition is devoid of merit.

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• 2007 (11) TMI 422
  

  Physical possession of residential building - whether the first respondent be restrined from taking physical possession of the building in question - Held that:- Inasmuch as no acceptable material as such had been placed relating to the alleged tenancy rights, this question cannot effectively gone into in the present writ petition. Even otherwise, since the petitioner has other alternative remedies, let the petitioner pursue such alternative remedies available to him in law. In the light of the same, liberty is given to the petitioner to pursue the other legal remedies available to him in accordance with law. W.P. dismissed.

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• 2007 (11) TMI 421
  

  Charges - whether belated registration of a charge can be permitted in respect of any asset of a company which has been directed to be wound up?

  Whether a charge comes to be created only upon the formal execution of a document and not on the company’s undertaking to the creditor to create a charge?

  Held that:- It would, however, be permissible for the rectification of a charge or the modification of the extent of a charge, at the liquidation stage but that presupposes the charge being already registered. There is a huge distinction between the modification of an already registered charge and the attempt to have an unregistered charge freshly registered. Section 141 and the discretion found therein cannot be carried so far as to allow a creditor to undo the effect of section 125 by which the charge created or agreed to be created in his favour by the company can be avoided by the Official Liquidator and the other creditors of the company.

  It would also appear from the decisions of the English courts under the provisions of both the 1948 Act and the 1985 Act in England which are in pari materia with sections 125 and 141 of the Act of 1956 applicable in this country, that the condition ordinarily imposed for allowing subsequent registration is that it would be open to the other creditors who had entered into transactions with the company during the interregnum, to disregard such registration

  The order of the Company Law Board is maintained, but for alto-gether different reasons. The reasons given by the Company Law Board in support of the order of rejecting are not approved. The appeal and connected applications are dismissed.

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• 2007 (11) TMI 420
  

  Winding up - Circumstances in which a company may be wound up - Held that:- As a matter of fact at the time of admission of this appeal, the appellant was directed to deposit a sum of ₹ 5,00,000 permitting the respondent herein to withdraw the same. Accordingly, the said amount has been withdrawn. When the amount has been permitted to be withdrawn by the respondent, when a decree has been obtained by the respondent under the provisions of the Industrial Undertakings Act on 29-9-1993, when the appellant has failed to discharge the decree even after four years, we do not see any error committed by the learned Company Judge in ordering the winding up of the appellant-company. Appeal dismissed.

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• 2007 (11) TMI 419
  

  Winding up - Custody of company’s properties - Held that:- Since the present applicant is offering ₹ 1.51 crores and it is already deposited with the Official Liquidator, there is no reason not to accept the said offer. Therefore, the order dated 30-8-2007, passed by this Court in O.L.R. No. 143 of 2007 is hereby recalled and the sale of lot No. A of the company in liquidation confirmed in favour of respondent No. 2 is hereby cancelled. The Court hereby confirms the sale of lot No. A of the company in liquidation in favour of the present applicant for ₹ 1.51 crores. Since the entire sale consideration has already been deposited by the applicant with the Official Liquidator, the Official Liquidator is hereby directed to hand over the possession of the movables within one week from today and the sale deed be executed in favour of the present applicant within one week from the date of receipt of the draft of sale deed from the present applicant.

  Since respondent No. 2 has already paid an amount of ₹ 1.27 crores, now the said amount is required to be refunded to respondent No. 2. The present applicant is, therefore, directed to pay interest at 12 per cent per annum on the actual amount of respondent No. 2 lying with the Official Liquidator. As soon as this transaction is over and sale deed is executed and possession is handed over, the Official Liquidator shall file compliance report before the Court.

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• 2007 (11) TMI 418
  

  Shares - Application of premiums received on issue of

  
  
  ... ...
  ... ... ..... titute of Chartered Accountants of India. (c)The additional of words, and reduced after name of the Company pursuant to section 102(2)(a) of the Companies Act be and is hereby dispensed with. (d)Publication of reasons for the reduction and other information pursuant to section 102(2)(b) of the Companies Act be and is hereby dispensed with. (e)The Company shall deliver to the Registrar of Companies, Rajasthan for registration of certified copy of this order within six weeks from the date hereof. (f)Notice of registration of the Registrar of Companies, Rajasthan of this order and of afore-quoted minutes be published once in daily Newspaper Indian Express (National Edn.) and Local newspaper Dainik Bhaskar (Rajasthan Edn.) within two weeks from the date of registration by Registrar of Companies. 4. In the light of what has been directed (supra), this Company petition be and is hereby disposed of. A copy of this order be sent to the Registrar of Companies for necessary compliance.

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• 2007 (11) TMI 417
  

  Oppression and mismanagement - Held that:- In view of the multifarious litigation pending between the petitioner and the contesting respondents, and the fact that the Central Government has already moved the Company Law Board for action, though not under section 401, find no merit in the contention that its decision not to do so is a wilful omission to exercise discretion which it was lawfully bound to, in the circumstances of this case.

  In the light of the above findings, the writ petition has to fail. The petitioner has indulged in speculative litigation, by seeking to use the jurisdiction of this Court under article 226, when plainly, there was absolutely no occasion for it to seek recourse to it, as the facts do not justify entertainment of such proceeding.

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• 2007 (11) TMI 416
  

  Oppression and mismanagement - Winding up petition - Held that:- The petition does not contain any specific instances of alleged acts of oppression and mismanagement. The allegations are of general nature. No doubt, the respondents filed certain documents, like minutes of the board of directors as well as copies of the ledger, etc., and the petitioners tried to project their case on the basis of these documents. However, the petitioners never chose to amend the petition or lead any evidence in this behalf.

  It was imperative on the part of the petitioner to show that the circumstances were such which would show that there is just and equitable cause for winding up of the company. This is not so in the present case. On the contrary, as noted above, at the relevant time the petitioner stopped taking interest in the affairs of the company thinking it to be a "sinking ship". Today the company is leading healthy life and is very much alive and kicking. Furthermore, when the entire events are taken "as a part of a consecutive story", the phrase used by the Supreme Court, the facts of this case would warrant that no interference is called for. W.P. dismissed.

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• 2007 (11) TMI 415
  

  Winding up – Statement of affairs to be made to official liquidator - Held that:- One should not lose sight of the fact that after 12 years of closure of the company and death of the main promoter as well, as professionals associated with the company wherein all the staff including senior officials having left not only the company but also the place where the company is situated it was very difficult for accused Nos. 2 and 3 or even accused No. 5 to furnish all these informations. The court, there fore is of view that whatever compliance was made by the accused persons till this date is considered to be sufficient compliance and they are not to be burdened with any further agonies by continuing these criminal proceedings against then.

  Since the court has come to the conclusion that this is not a case where a view can be taken that the default was committed without reasonable excuse. Hence, there is no question of awarding any sentence. Even when the court is satisfied that there is a reasonable excuse, the court takes a lenient view while awarding the fine. The court, therefore, holds that interest of justice would better be served if accused Nos. 2, 3 and 5 are punished with a fine of ₹ 5,000 each for late filing of the statement of affairs. Accordingly, accused Nos. 2, 3 and 5 are punished with a fine of ₹ 5000 each. The amount of fine shall be deposited with the official liquidator within four weeks from today.

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• 2007 (11) TMI 413
  

  Amalgamation - Held that:- The observations made by the RoC do not survive and the scheme of arrangement would be in the interest of the companies, their members and creditors. The prayers in terms of paragraphs 26(a), 21( a) and 21(a) made in Company Petition Nos. 183 of 2007, 184 of 2007 and 185 of 2007, respectively are hereby granted.

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• 2007 (11) TMI 412
  

  Compromise and arrangement - order of the learned Company Judge sanctioning a Scheme of Amalgamation challenged raising an objection to clause 13.2 of the Scheme, which provides that the filing fee already paid by the Transferor Company on its Authorised Share Capital shall be deemed to have been so paid by the Transferee Company on the combined Authorised Share Capital

  Held that:- The issue is not whether the fee, which is already paid by the Transferor Company would automatically be transferred to the Transferee Company. But, what is intended by section 391 of the Act is to reconstitute the Company without the Company being required to make a number of Applications under the Companies Act for various alterations which may be required in its memorandum and articles of association for functioning as a reconstituted Company under the scheme. Not only is section 391 of the Act is a complete code in itself, but it is intended to be in the nature of a "single window clearance". Appeal dismissed.

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• 2007 (11) TMI 411
  

  Repeal and savings, Applicability of regulation

  
  
  ... ...
  ... ... ..... . (p. 939) 97. It is also well-settled that in interpreting a repealed statute, four things are to be considered (1) what was the prevailing enactment governing the field, (2) what was the mischief and defect for which it did not provide, (3) what remedy (the Bhagwati Committee in the present context) has been resolved and appointed to cure the disease and (4) the true reason of the remedy. And all statutes, except declaratory or procedural on matter of evidence, are prospective. No retrospective effect is to be given unless statute, by express words or implication, indicates it. 98. Therefore, we have no hesitation to hold that the impugned order passed by the Securities and Exchange Board of India dated 6-3-1997 and the impugned order of the Appellate Authority dated 15-12-1997 do not call for any interference. 99. Petition is dismissed with no order as to costs. Rule is discharged. 100. Consequently, Notice of Motion does not survive, and the same is dismissed accordingly.

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• 2007 (11) TMI 410
  

  Winding up application - whether leave of the Court shall be obtained for the admission of the petition - Held that:- The provisions do not, require that the matter should be placed before the Court in the first instance for acceptance before examining the merits of the case for admission and/or directing advertisement thereof. The necessity of placing the matter for acceptance is only to indicate the returnable date on which the matter will proceed for admission. That is a ministerial work which can be carried out even by the Registry. In other words, on institution and registration of the company petition, the matter is required to be considered by the Court for admission and to grant leave to advertise the petition. Granting of returnable date for admission of the petition after its institution and registration so that the matter would proceed before the Court for admission or for grant of leave to advertise, is a matter which can be left to the Company Registrar, being ministerial work. That will also ensure that the matters do not remain pending in the registry for want of acceptance.

  Place this matter for admission on 13-12-2007. The petitioner shall take steps to give intimation to the respondent-company in this behalf, if so advised.

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• 2007 (11) TMI 409
  
  Issues involved: Appeals u/s 10F of Companies Act, 1956 against interlocutory orders dated 24-8-2007 and 13-9-2007 in Co. Pet. 39/2007.
  
  Summary:
  
  Issue 1: Jurisdiction of passing interim order without relief sought in main petition
  The respondents filed a company petition before the Board under sections 397 and 398 of the Co. Act, raising concerns about oppression and mismanagement. Interlocutory orders dated 24-8-2007 and 13-9-2007 were passed by the Board, restraining certain actions related to bank accounts. The appellants challenged these orders on the grounds of jurisdiction and the authority to pass interim orders without relief being sought in the main petition. The High Court observed that the interlocutory orders were related to the management and better functioning of the company's affairs. The Court found that the Board had not exceeded its jurisdiction in passing these orders, as they were within the scope of addressing the issues of oppression and mismanagement. The Court held that the questions raised did not amount to questions of law under section 10F of the Co. Act, and thus, the appeals were dismissed.
  
  Issue 2: Authority to sign on behalf of the Company after removal from Directorship
  The second question raised by the appellants was whether a person who had been removed from the directorship of a company could be allowed to sign on behalf of the company. The Board had directed that parties could operate bank accounts other than the specified one with joint signatures until the disposal of the petition. The High Court noted that the company petition was primarily about oppression and mismanagement, and the interim orders were aimed at ensuring the smooth functioning of the company's affairs. The Court found that the Board's exercise of discretion in issuing these orders was not perverse and did not warrant intervention. The Court concluded that the issues raised did not qualify as questions of law arising from the interlocutory orders, and therefore, the appeals were dismissed.
  
  In conclusion, the High Court upheld the interlocutory orders passed by the Board and dismissed the appeals, stating that no costs were to be awarded.

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• 2007 (11) TMI 408
  

  Winding up - Overriding preferential payment - Held that:- Once it is held that section 529A has effected overriding preferential payment and treats the dues of the workmen and debts due to the secured creditors at par then before entering into any other controversy the Company Court is obliged to see as to whether the amounts already paid or proposed to be paid to the workmen would stand pari passu with the rights of the secured creditors.

  With due respect to the learned Company Judge, it is held that the learned Single Judge did not see as to whether the payment of amount of ₹ 6,45,40,834 would still be under the provisions of section 529A, whether it would come beyond the pari passu claim of the workmen and whether the Department still would be entitled to recover the money before settlement of the dues of the secured creditors so also of the workmen. It appears that all these arguments were not raised before the learned Single Judge and the question for making an order on those lines never cropped up before the learned Single Judge.

  With utmost respect at our command we set aside the judgment/order dated 4-4-2007, passed by the learned Single Judge. As a consequence of this order, we direct respondent No. 3 to deposit back the amount of ₹ 6,45,40,834 with the Official Liquidator. We remit the matter to the learned Single Judge with a request to reconsider the entire matter in accordance with law.

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• 2007 (11) TMI 407
  

  Winding up - Circumstances in which a company may be wound up - Held that:- The learned Company Judge should have either accepted the compromise making it as a part of the final order (decree) or could have refused to accept the said compromise with a reasonable ground for not accepting the same and in such case only he could have proceeded on merits to decide whether winding up was necessary or not. In this connection we may state that this court has noted the oral submissions made by the parties that number of winding up proceedings have been preferred against the company and in many of them such compromise petitions have been filed. For the said reason we are not deliberated on the question whether the winding up is necessary or not, which required determination by the learned Company Judge.

  In fine, the appeal is allowed and the matter is remanded to the learned Single Judge for fresh determination taking into consideration the compromise petition filed by the parties and then to dispose of the matter in accordance with law.

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• 2007 (11) TMI 406
  

  Winding up of the sick industrial company, under section 20(2) of the SICA - Whether the company judge exercising powers under section 20(2) of the Sick Industrial Companies (Special Provisions) Act, 1985, is bound by the recommendations/opinion of the Board for Industrial and Financial Reconstruction ("the BIFR") under section 20(1) of the SICA recommending winding up of the company ?

  Held that:- Order of the learned single judge ordering winding up of the company solely on the basis of the opinion of the Board cannot be sustained. The learned judge did not form his own opinion in the matter. As held above, the company judge should have formed his own opinion and thereafter was bound to follow the Companies (Court) Rules, 1959, from the stage of advertisement of the petition of winding up onwards.

  In view of the above discussion the impugned order is set aside and the matter is remanded to the learned single judge who shall consider the opinion of the Board in the light of the law as mentioned hereinabove pass such orders on the petition as he deems fit.

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• 2007 (11) TMI 405
  

  Demerger - Compromise and arrangement - Held that:- Find force in the submissions of learned counsel for the petitioners as objections of of the Regional Director could not be put against the petitioners at the time of considering the sanctioning of the scheme of arrangement. Further, as rightly contended by learned counsel for the petitioners, the petitions filed under sections 391 to 394 of the Companies Act are like a single window system and the petitioners could not be burdened with taking out various applications which are cumbersome in nature. Further, learned counsel for the petitioners, has rightly pointed out that, if necessary, the petitioners could always go before the Registrar of Companies for obtaining the necessary approval even after the scheme of arrangement is sanctioned by this Court. Proposed scheme of arrangement allowed.

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• 2007 (11) TMI 404
  

  Winding up - Liability for fraudulent conduct of business - Held that:- In the light of the settled legal principles, if the report of the official liquidator dated 5-4-2005, filed in support of the application is considered, it will reveal that the alleged misfeasance and non-feasance are general in nature without pinpointing a specific act of dishonesty and misappropriation on the part of the individual ex-directors. Therefore, on the basis of such general and sweeping allegations, this Court cannot proceed against the respondents under sections 542 and 543 of the Companies Act. As the report of the official liquidator is found wanting with regard to material particulars and specific acts of commissions and omissions, which are a must to proceed against the ex-directors under sections 542 and 543 of the Act, have no hesitation in rejecting this application.

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• 2007 (11) TMI 403
  

  Compromise and arrangement

  
  
  ... ...
  ... ... ..... mpany, whereas the valuation report states that allotment of shares of transferee-company will be to the shareholders of the transferor-company. Shares of a company are held by shareholders and not the company. Moreover, in the scheme under Part 1 (Preamble) Clause D, it has been provided that transferee-company has agreed to issue shares to the shareholders of the transferor-company in consideration of the demerger of the Jindalinvest Division . 5. Accordingly, both the objections raised by Regional Director are not tenable, hence rejected. 6. No other objection has been received against proposed scheme of arrangement. 7. Accordingly, petition is allowed and the scheme of arrangement, Annexure-1 to this company petition, is hereby approved and sanctioned. It is further directed that the certified copy of this order shall be filed before the Registrar of Companies within 30 days of its receipt. A formal order in appropriate form of the Company (Court) Rules 1959 shall follow.

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