Company Law India: Read latest Company law news & updates, acts, circular, notifications & articles issued by MCA amendment in companies Act 2013. Article on Loans Company formation XBRL, Schedule VI IFRS.
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Even in the present application Official Liquidator does not state what was the value of these shares as on the date of winding up order was passed or even as on the date of filing of statement of particulars by ex-directors so as to arrive at a conclusion that on account of such non-handing over of shares certificates it has resulted in financial loss to the company (in liquidation) which otherwise would not have occurred.
Companies Bill, 2012, after a very long journey and with many stumble blocks, has finally seen the light of day in Lok Sabha. After much speculation and eagerness on the subject, Lok Sabha finally approved the Bill on the night of 18th December, 2012.
It is well settled that the proceedings of winding up is not a recovery proceeding. Once it is demonstrated that the debt is subject to a bonafide dispute, the court will not order for winding up. The principles in this regard are elucidated in Madhusudan Gordhandas (supra).
CLB has rendered a finding that the application for amendment was allowed for determination of the issues between the parties and for the purpose of framing issues for avoiding multiplicity of litigations.
Record shows that the name of the petitioner was never entered into the register of members as a holder of 52470 shares; his own case is that the share transfer forms were available with him in 1998; he however took no steps to get himself on to the register of members; fault was entirely of the petitioner;
In the present case, as stated hereinabove, admittedly original accused No. 2 was appointed as managing director of original accused No. 1-company and original accused No. 1-company had also the whole-time directors and the manager. The petitioner was arraigned as an accused only as a ordinary director.
So far exercise of jurisdiction vested upon the Company Court under Section 446(2) of the Act is concerned, in my view and also in view of the decisions cited by the learned Counsel appearing for the applicant, it is already settled that this Court have ample power to adjudicate and determine all questions that arises in winding up. Such questions include eviction of trespassers from property of the Company (in liquidation) and the Company Court also by a summary order can direct eviction of a trespassers from the Company property. But Company Court must follow the law of the land in regard to such eviction.
An application under Section 543 of the Companies Act, 1956 cannot be made in vague terms and it cannot be used as a power to conduct a roving enquiry in these proceedings and to ascertain as to whether there is any act of misfeasance on the part of erstwhile directors.
The Board ought to have considered the date of filing of the Petition, as well as the admissions so given by the contesting Respondents, before rejecting the Company Petition in such a fashion on the ground of maintainability.
The appellant may have a very good case on merits and would possibly be able to establish in an appropriate proceeding that the respondent have acted in a fraudulent manner and defrauded him to Rs. 2 crore. However, in proceedings for winding up the company, the Court cannot adjudicate upon a bona fide disputed debt. It is well settled principle of company law that wherever there is a bona fide disputed debt, the petition for winding up of a company is not appropriate remedy to enforce the debt. In the circumstances, no fault is found with the order of the Single Judge. Accordingly, the appeal is to be dismissed.
