TaxTMI 
TaxTMI 
2018 (1) TMI 1180
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....e above winding up case as CP No.30/2006 on the file of this Court. 2. The above Company is a joint sector company with equity participation of KSIDC (Kerala State Industrial Development Corporation) and was incorporated on 28.2.1985 and was originally promoted by Sri. R. Martin Joseph, Sri. Crispin Roy, Sri. C. Johnson and Sri. P. Marikani with equity participation of 40% by the KSIDC with a paid up capital of Rs. 34.17 lakhs. The Company was engaged in the manufacture of Dissolved Acetylene (DA) Cylinders and is stated to have functioned well up to the year 1992. Later, the Company diversified its production from DA Cylinders to Liquid Petroleum Gas (LPG) Cylinders, and gone into financial crisis along with labour related problems. So the Company was declared as a Sick Industrial Company under Section 3(1)(o) of the SICA by the BIFR on 11.6.1998. The Canara Bank was appointed as the operating agency and proceedings were initiated as Case No.106/1998. The BIFR sanctioned scheme No.SS-99 for rehabilitation of the Company as per order dated 28.5.1999 under Section 18(4) read with Section 19(3) of the SICA. Later, BIFR modified the scheme and numbered the scheme as MS-00 as per or....
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....duced Annexure-R1(e) minutes dated 26.8.2006 of the meeting chaired by the Principal Secretary (Industries & Commerce), Government of Kerala to fortify the above claim. As per Annexure R1-(e) minutes, the Canara Bank, KSIDC and KFC (Kerala Financial Corporation) have agreed that their secured loans to be settled by way of OTS for the principal outstanding, and the Canara Bank agreed to settle the unsecured working portion of that Bank at 50% of the principal amount. The Kerala State Electricity Board (KSEB) also had agreed to settle their dues to the actual power consumed and the decision on settlement of the sales tax arrears was deferred. As per Annexure-R1(g) dated 9.1.2007, the KFC stated that it could forego interest amounting to Rs. 474.27 lakhs and reduce the liability to Rs. 66.82 lakhs (principal amount). As per Annexure-R1(i), which is the draft minutes of the meeting chaired by Deputy Labour Commissioner produced by the 1st respondent, the disputes between the management and workers were agreed to be settled. The 1st respondent further stated in the objection that the dues to 4th respondent, IDBI (Industrial Development Bank of India), were also included with the dues to....
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.... the KSEB has pointed out that the supply to the company was disconnected on 17.10.2005 and dismantled on 22.09.2006 for non-payment of arrears of current charges. According to the KSEB, the total amount due to the KSEB was Rs. 1,70,32,008/- as on 31.01.2008. It was also pointed out that the KSEB can waive the maximum demand charges for the period from April, 2002 to February, 2006 and offered to reduce the interest rate to 12% instead of 24%. Accordingly, the KSEB submitted that the same is the maximum benefit which they could extend to the Company. Even in the affidavit dated 12.8.2008 filed by the KSEB as directed by this Court, the said party has reiterated their earlier stand. 5. Thereafter, the 1st respondent had filed Company Application No.714/2007 dated 17.10.2007 seeking stay of Annexure A1 sale proclamation notice dated 05.09.2007 issued by Employees' Provident Fund Organisation (EPFO). As per order dated 25.10.2007, this Court had granted interim order staying Annexure-A1 sale for a period of six weeks. As per order dated 28.3.2008, this Court had revived and extended the stay until further orders. 6. The 1st respondent then filed Company Application No. 840/2007 ....
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....for the above loans. According to the KSIDC, the original promoters informed KSIDC about the appointment of Sri. Hari as the Managing Director of the Company, in the year 2003 and the name of the company was changed without the approval of KSIDC. It was also pointed out that the OTS facility provided by the KSIDC has not the availed by the Company and accordingly all the OTSs were cancelled. It has also been pointed out that as on 01.11.2016 the total outstanding amount is Rs. 20,18,05,692/- and the KSIDC had initiated revenue recovery proceedings against all the nine guarantors of the Company and had sent revised requisition in the year 2013. As per order dated 30.10.2014, this Court passed an interim order staying the revenue recovery proceedings and the said order was extended as per orders dated 26.11.2014, 04.12.2014 and 11.12.2014. Thereafter, as per order dated 18.12.2014 this Court had vacated the aforesaid interim order. 7. Company Application No.21/2009 has been filed by the 1st respondent in CA No.840/2007 in the above CP. The prayers therein are as follows: "(i) To permit the applicant company to revive the Company and to start production on the basis of the....
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.... is brought to the notice of this Court that Sri. R. Hari, the Managing Director of the Company, had died during the pendency of this proceedings. In the affidavit filed by Sri. Premkumar in CA No.273/2017, it is alleged that the abovesaid Sri. Hari, who was the Managing Director of the Company till his death, had made several manipulations and fraudulently transferred the shares, which were in the name of Sri. Premkumar, to the credit of Sri. Hari and wife and two daughters of late Sri. Hari. Sri. Premkumar has also averred that since the Company Petition is being delayed, the creditors are proceeded against his personal properties for the reason that he stood as a guarantor for the loan availed by the company. This Court had disposed of the said company application accepting the objection of the KSIDC that the petitioner is not a necessary party. However, this Court had permitted the said applicant to participate as an intervenor if he so desires, and had also granted liberty to file an application at a later stage, if his impleadment is found to be necessary etc. 11. After the death of Sri. Hari, the aforesaid Managing Director of the Company, no other revival scheme is propo....
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....s the date on which the provisions of the aforesaid Act (Act 1 of 2004) have come into force. So the Sick Industrial Companies (Special Provisions) Act, 1985 (SICA) has now been repealed with effect from 01.12.2016. It is also relevant to note that the Companies Act, 1956 which confers power to this Court to order winding up of the Company, has been repealed as per Section 465 of the Companies Act, 2013. However, the proviso to Section 465 of the Companies Act, 2013 has mandated that until a date is notified by the Central Government under sub-Section (1) of Section 434 for transfer of all matters, proceedings or cases to the Tribunal, the provisions of the Companies Act, 1956 (1 of 1956) in regard to the jurisdiction, powers, authority and functions of the Board of Company Law Administration and court shall continue to apply as if the Companies Act, 1956 has not been repealed. In exercise of the powers conferred under sub-Sections (1) and (2) of Section 434 of the Companies Act, 2013, read with sub-Section (1) of Section 239 of the Insolvency and Bankruptcy Code 2016, the Central Government has notified Companies (Transfer of Pending Proceedings) Rules, 2016. As per Rule 5(2) of t....
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.... "3. In the principal rules, for rule 5, the following rule shall be substituted and shall be deemed to have been substituted with effect from the 16th day of June, 2017, namely:- "5. Transfer of pending proceedings of Winding up on the ground of inability to pay debts.- (1) All petitions relating to winding up of a company under clause (e) of section 433 of the Act on the ground of inability to pay its debts pending before a High Court, and, where the petition has not been served on the respondent under rule 26 of the Companies (Court) Rules, 1959 shall be transferred to the Bench of the Tribunal established under sub-section (4) of section 419 of the Companies Act, 2013 exercising territorial jurisdiction to be dealt with in accordance with Part II of the Code: Provided that the petitioner shall submit all information, other than information forming part of the records transferred in accordance with rule 7, required for admission of the petition under sections 7, 8 or 9 of the Code, as the case may be, including details of the proposed insolvency professional to the Tribunal upto 15th day of July, 2017, failing which the petition shall stand abate....
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....ting the word, "not"? Take a second example: A state of the United States bars the use of weapons on a public highway, "except for the purpose of killing some noxious or dangerous animal or an officer in pursuit of his duty." (66)* Should a judge determine that the use of weapons in public highways is permitted for the purpose of killing an officer in pursuit of his duty, or may the court correct the mistake and decide that the word "by" comes after the word "or"? These may be extreme examples, but the issue arises in moderate cases, too. The question is whether a judge may correct the language of a text. We might say that judicial alteration of a text that someone else created infringes on the autonomy of private actors (in the case of a contract or will) and on separation of powers (in the case of a constitution or statute). Lord Esher, M.R., had this to say about correcting a mistake in a statute: "If the words of an Act are clear, you must follow them, even though they lead to a manifest absurdity. The Court has nothing to do with the question whether the legislator has committed an absurdity." [R. v. Judge of City of London Court [1892] 1 Q.B.273, 290]. Esher....
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....taining an error of meaning, (3) the text containing a casus omissus; (4) the text containing a casus male inclusus, and (5) the case where there is textual conflict." See also Cross, supra p.3, note 3 at 36; A. Samuels, "Errors in Bills and Acts," [1982] Statute L. Rev. 94. (70)* A Sutherland, Statutes and Statutory Construction 284 (N. Singer ed., 5th ed. 1992)" 19. On a comparison of the original Rule 5 contained in sub-Rules (1) and (2) thereof as notified in GSR 1119(E) dated 7.12.2016 with the provisions contained in the amended provisions as per notification dated 29.6.2017 in GSR 732(E), it appears that what has been sought to be amended is only sub-Rule (1) of Rule 5. Therefore, on and with effect from the commencement of the amended Rules, Rule 5(1) will stand modified and substituted in the manner shown in the amended Rules. Though the amended Rule says that the entire Rule 5 will stand amended in the manner shown in the amended Rules, a perusal of the amended Rule 5 would make it clear that still Rule 5(1) has been referred to therein and Rule 5(2) has not been mentioned therein. It cannot be the intention of the rule making authority that Rule 5(2) of the o....