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I. Dissent note submitted by Shri Gurudas Dasgupta, MP II. Minutes of the sittings of the Committee held on 24 January, 2012 , 18 May, 2012 and 7 June, 2012 III. The Companies Bill, 2011
The bank had provided credit facilities to the company. The private respondents in the two writ petitions were the guarantors to the said credit facilities provided by the bank. As there was default in payment of the bank dues, an application was filed before the DRT by the bank against the company and private respondents in these petitions. It transpires that the company was declared a sick company under section 3(1)(o) of the Sick Industrial Companies (Special Provisions) Act, 1985 by the Board for Industrial and Financial Reconstruction on 8-11-1994 and recommendation was made for it to be wound up. An appeal was filed which was also dismissed.
A list of professionals appointed by the company from 1957 onwards is extracted in the written submissions filed by the respondents to argue that the Board seat was not reserved for family members on representative basis. The list includes several non-family directors. Therefore, it is contented that though the company is promoted by three families and has representatives of three families as its shareholders, it has been professionally managed, and hence there was never any understanding or tacit consent stipulating proportional representation of the shareholders on the board. It is the specific case of the respondents that if such an understanding was there, one of the petitioners would have automatically become a director of the company.
On consideration, the contention raised by the appellants is found to have force. The Company Law Board, cannot issue injunction in implementing the decision to be taken by the shareholders in its meeting, unless the prima facie finding is recorded, that the decision is prejudicial to the public interest or the company at large.
The offence alleged in the complaint against the petitioner is not a ‘continuous wrong’ and, therefore, the bar to take cognizance as contemplated under section 468(2)(b) of the Code of Criminal Procedure applies to the complaint lodged in the present case and, therefore, taking cognizance of such an offence after more than 11 years is clearly beyond the period of limitation prescribed and is clearly barred in law. In the result, the instant petition is allowed and the order of cognizance and summons issued in aforesaid cases are set aside.
Ministry of Corporate affairs has vide its General Circular No. 14/2012, dated 21-6-2012 imposed fees on various forms which were free of cost. One such form was E-form-23B which in an Intimation to ROC by statutory auditors regarding their appointment. So now fee shall be payable based on Authorised Capital of the Company. Additional fee provisions shall also apply in case of delay. It shall be applicable from 22nd July 2012.
e-Voting is voting through an electronic system where shareholders can vote on resolutions of companies requiring voting through Postal Ballot as per extant rules and regulations without having the necessity of sending their votes through post. Ministry of Corporate Affairs has authorised NSDL for setting up an electronic platform to facilitate shareholders to cast vote in electronic form. Accordingly, NSDL has set-up an electronic infrastructure to facilitate shareholders to cast votes in electronic form through internet.
In the instant case, admittedly, sale deed was executed in favour of the respondent-director in the year 1989, while purchasing the land on behalf of the company. The property was mortgaged by the respondent-director in his individual capacity. The parties also came to know about the property being in the name of the respondent-director, when the suit was filed and got settled by respondent-director by redeeming the property.
A company cannot, at the post-advertisement stage, disturb or unsettle the finality of a finding as to the indisputable nature of a debt rendered at the admission stage of a creditor’s winding up petition. Even though the decision at the admission stage is final as between the company and the petitioning-creditor, others connected with the company who come in after advertisements may question the finding and the Court may not feel constrained that it is bound by the finding.
Various companies, and professionals such as Cost Accountants, Chartered Accountants, & Company Secretaries, and other stakeholders from corporate sector are connected with the usage of product group classification. All are welcome to examine the draft and furnish comments/suggestions to this Ministry within a period of three weeks i.e. by 15th July, 2012 through email on the following e-mail address: –
