12/01/2022

The possession of immovable property by the Company cannot be a ground to state that the Company has been active and carrying on business nor can be a valid ground to invoke the ‘just’ ground as envisaged under Section 252(3) of the Companies Act, 2013, unless the object of the Company pertains to the same – Sivagnanagovindasamy Nambi Vs. The Registrar of Companies – NCLT Chennai Bench

NCLT holds that filing of income tax return will not establish that the company is in operation, as this is primary/statutory responsibility to file the income tax return. It also holds that since the Applicant Company is required to show that the subject Company was active and carrying on business immediately two years preceding the date of strike off. The possession of immovable property by the Company cannot be a ground to state that the Company has been active and carrying on business nor can be a valid ground to invoke the ‘just’ ground as envisaged under Section 252(3) of the Companies Act, 2013, unless the object of the Company pertains to the same.

The possession of immovable property by the Company cannot be a ground to state that the Company has been active and carrying on business nor can be a valid ground to invoke the ‘just’ ground as envisaged under Section 252(3) of the Companies Act, 2013, unless the object of the Company pertains to the same – Sivagnanagovindasamy Nambi Vs. The Registrar of Companies – NCLT Chennai Bench Read Post »

Whether the prosecution under Section 138 of the Negotiable Instruments Act initiated against the company and directors maintainable in view of the moratorium under IBC – Mr. A.R. Asaithambhee Vs. S. Thangavel – Madras High Court

The Hon’ble High Court holds that the question herein is whether the prosecution initiated against the company and directors maintainable in view of the above moratorium.

As per the decision of the Apex Court in a judgment reported in P. Mohanraj and Others vs. Shah Brothers Ispat Pvt. Ltd. (2021) ibclaw.in 24 SC, the petitioners being the directors of the company, have to be prosecuted. The Court also refers the Apex Court judgment in Bir Singh vs. Mukesh Kumar [Crl.A.No.230-231 of 2019 dated 06.02.2019 – Supreme Court].

It holds that in such a view of the matter, when the petitioners themselves have admitted before this Court that the cheques were issued in the year 2016, merely because the different date is mentioned in the complaint, it is the matter of evidence. In such a view of the prosecution initiated by the respondent cannot be quashed. The Petition is liable to be dismissed. In view of the same, the Criminal Original Petition is dismissed. Consequently connected Miscellaneous Petitions are closed.

Whether the prosecution under Section 138 of the Negotiable Instruments Act initiated against the company and directors maintainable in view of the moratorium under IBC – Mr. A.R. Asaithambhee Vs. S. Thangavel – Madras High Court Read Post »

The ‘Principle of stare decisis’ is fully applicable on judgments delivered by the NCLT as well as NCLAT. Both NCLT and NCLAT are bound by doctrine of stare decisis – Rajeev R. Jain Suspended Director Vs. AASAN Corporate Solutions Pvt. Ltd. – NCLAT New Delhi

NCLAT holds that there can be no doubt that the principle of stare decisis is fully applicable on judgments delivered by the NCLT as well as this Appellate Tribunal. Both NCLT and this Tribunal are bound by doctrine of stare decisis. At this juncture, we may clarify that what is binding as a precedent on Company Law Tribunal is the judgment of jurisdictional Tribunal. Judgment delivered by NCLT in other jurisdiction have only persuasive value.
Further, it holds that if the law provides any other remedy to Mortgagee the same can very well be availed by him. It is the choice of the mortgagee to recover his dues from secured assets or to take other recourse of remedy as provided under law. The terms and conditions of the mortgage thus cannot claim any superior status and proceedings under Section 7 can be availed irrespective of any contrary or inconsistent condition in mortgage.

The ‘Principle of stare decisis’ is fully applicable on judgments delivered by the NCLT as well as NCLAT. Both NCLT and NCLAT are bound by doctrine of stare decisis – Rajeev R. Jain Suspended Director Vs. AASAN Corporate Solutions Pvt. Ltd. – NCLAT New Delhi Read Post »

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