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2020 (1) TMI 107
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....fore, the case is taken on the file of this Tribunal and allotted T. P. No. 11 of 2017, listed on various dates from June 7, 2017 and directed the petitioner to comply with provisions of the Code. Accordingly, the petitioner has issued demand notice dated October 9, 2017 in Form 3 under rule 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 to the respondent by demanding to pay the outstanding amount and also complied with the provisions of the Code by filing prescribed application under the Code. The case is pending from the year 2017. 3. Brief facts of the case, as mentioned in the company petition, which are relevant to the issue in question, are as follows : (1) Shri Kartik Kalevar and 20 others, (hereinafter referred as the peti tioners) are all the employees of the respondent-company, who are work ing for the respondent-company. The petitioners have dedicated and worked efficiently and served the respondent-company under various desi gnations. (2) M/s. MetroCorp Infrastructure Ltd. (hereinafter referred as respondent) a registered partnership firm, incorporated under the Indian Partnership Act, 1932, was carrying on th....
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.... 5. Jayanthi (B. S.) Petitioner No. 5 - 1-9-2005 1-5-2009 6. Johnson (C.) Petitioner No. 6 19-5-2007 - 1-8-2008 7. Kabilan (V.) Petitioner No. 7 - 25-1-2006 1-5-2009 8. Late Somana (C. D.) represented by his wife Latha Somanna Petitioner No. 8 - - 1-4-2007 9. Mamatha (S.) Petitioner No. 9 - - 1-2-2010 10. Muktha Kadam Petitioner No. 10 3-1-2010 - 16-5-2011 11. Rahul R. Menon Petitioner No. 11 - 23-7-2007 1-5-2009 12. Ravi Kumar (N.) Petitioner No. 12 - - 13-9-2006 13. Sabitha Mandanna (P.) (Kaveramma M. U.) Petitioner No. 13 - - 14-6-2006 14. Shankar Dongre Petitioner No. 14 - - 6-7-2011 15. Siva Selladurai Petitioner No. 15 - - 1-2-2011 16. Smitha (C. P.) Petitioner No. 16 - - 24-7-2006 17. Subodh Kumar (B.) Petitioner No. 17 - 2-7-2007 1-7-2009 18. Tabasum Petitioner No. 18 2-7-2007 1-9-2008 1-5-2009 19. Tarini (K. M.) Petitioner No. 19 - 5-3-2008 1-4-2009 20. Varun Lath Petitioner No. 20 - - 7-11-2....
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....and lia bilities within the meaning and scope of the provisions of the Companies Act, 1956. A sum of Rs. 2,26,89,936 in relation to unpaid salary and other employee related consequential benefit and statutory dues owed to the petitioner's and the same constitutes a debt due to the petitioner's by the respondent. Therefore, the respondent's-company be deemed to be com mercial insolvent and that thus it is just and proper that the same be ordered to be wound up by an order of this the hon'ble High Court in accordance with section 433 read with section 434 of the Companies Act, 1956. (8) It is submitted that forty employees have filed petition before the Regional Provident Fund Commissioner, Bengaluru seeking payment of Provident Fund. Regional Provident Fund Commissioner vide letter KN/ PF/SRO/YNK/COMP/2014-15/267, dated December 5, 2014 has informed that the company is a defaulter under the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 and enquiry under section 7A of the Act is going on against the establishment for non-payment of PF and allied dues. Eight employees have fried petition under Payment of Gratuity Act, 1972 before the Co....
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....r. Dvn, Devanahalli O. S. No. 221 of 2011, 222 of 2011, 223 of 2011, C. C. No. 122 of 2011 (10) It is submitted that Pramerica Cyprus ASPF II Holding Ltd., who are majority shareholders in the company have filed petition before the Company Law Board, Chennai vide C. P. No. 7 of 2013 under section 397/ 398 of the Companies Act, 1956 and they have filed two petitions vide C. C. No. 15955 of 2013 and Crl. Misc. No. 5753 of 2014 (under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Inter est Act, 2002) which are coming up before IVth Additional Metropolitan Magistrate, Bengaluru March 25, 2015. As per the Ministry of Company Affairs web site, no annual general body meeting has been conducted since September 30, 2010. Last balance-sheet has been audited and uploaded in the Registrar of Companies website only up to March 31, 2010. periodic returns have not been uploaded to the Registrar of Companies website. (11) It is stated that Pramerica Cyprus ASPF II Holding Ltd., who are majority shareholders has nominated two directors on the board, as such it is indirectly responsible for the irregularities/mismanagement. Pramerica has i....
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....han whatever the claim raised by the petitioners. The claim raised in this petition is equal to 1 per cent. of total assets of the company. The provisions of section 433 read with section 434 of the Companies Act has no application ; these provisions were attracted only where there was a "debt" owed by the company to a peti tioner ; in the present case there was no "debt" owned by the company to the petitioner ; no such debt could arise when the amount paid as and when it was due. The respondent's company made payments to the peti tioners as scheduled. Hence the question of winding up under section 433 read with section 434 of the Companies Act does not arise. (3) It is true that at some point of time, various litigations are pending against the respondent's-company. However, as on today, most of the cases mentioned in the list are disposed off either by way of settlement or on merits. The periodic returns could not be uploaded/filed with the Regis trar of Companies in view of the various frivolous litigations which are initiated by one of the investor Pramerica Cyprus, as such directly Pramerica Cyprus is responsible for all the misdemeanours. Though the project h....
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....rue that the company has collected huge amount of around 130 crores from its clients towards land and constructions. The pro ject received an overwhelming response from the general public and in view of various frivolous litigations, the project has come to stand still and due to which the project is in the interregnum which run into rough weather and could not be implemented in its true terms. (8) It is admittedly by the petitioner, the company stopped paying sal ary and other consequential benefits since 2010 and due, if any, would become payable, if made on or before June 2013 but the claims in relations to due raised in 2015 would be barred by limitation. Therefore, the claim of the Respondent in relation to any of claim made after three years from 2010 is barred by limitation and such claims are therefore stale claims which cannot be entertained by this Tribunal. (9) It is not true that petitioner having priorities over other rights. It is to be noted that the petitioners who were on rolls with the company was paid as and when it was due and some of the petitioners herein are not at all employees of the respondent's-company. 5. The petitioner has filed....
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....e, a partnership firm which was converted into a public limited company. Other petitioners have directly jointed the company or have been transferred from MetroCorp or other allied companies. The husband of petitioner No. 8 was attending his duties regularly up to March 31, 2014 and with effect from April 1, 2014 he was not regularly attending his duties due to piling up of his dues. Hence, his claim is only up to March 31, 2014. It is submitted that the husband of peti tioner No. 8 has not submitted his resignation and expired while on duty on June 8, 2014. He is being represented and expired while on duty on June 8, 2014. He is being represented by his wife Mrs. Latha Somanna, petitioner No. 8 in this company petition claiming the dues. (6) It is submitted that petitioner No. 1 joined MetroCorp Infrastruc ture Ltd. on July 1, 2009. Since his salary was not paid, he stopped attend ing to his work with effect from September 1, 2012. On August 31, 2012 he has submitted a letter to the respondent-company stating that the respondent-company has failed to pay his salary and will not be attending to his duties from September 1, 2012. Also, has informed that he would be submitti....
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....July 2011 provident fund contribution/ remittance as base figure and calculated arrears. As a result of considering the July 2011 provident fund contribution as the base figure, it has not con sidered the increment in salary sanctioned to petitioners Nos. 12, 13, 16, 18 and 19. Also the PF Department has not considered restoration of gross salary of petitioner No. 17 Rs. 1.75 lakhs per month to Rs. 2.50 lakhs per month with effect from October 2011. His salary was reduced from Rs. 2.50 lakhs to Rs. 1.75 lakhs with effect from February 1, 2010 due to austerity measures. (11) They have relied upon the judgment passed by the hon'ble Supreme Court in Appeal (Civil) Nos. 14772-14773 of 2010 between Maharashtra State Co-op. Bank v. Kannada Sahakari Sakhar Karnataka Ltd. wherein the hon'ble apex court has upheld dues assessed under sec tion 7A but interest under section 7Q and damages under section 14B and dues to be treated as "priority dues" under section 11 of the EPF and MP Act, 1952. Employees Provident Fund Organisation (EPFO), Head Office, New Delhi vide letter LC/2(717)/2011/MH/9748, dated August 27, 2013 has advised all field functionaries to take necessary actio....
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.... petitioner No. 7 at Vijaya Bank, R. T. Nagar, Bengaluru. 6. Heard Shri K. Manjunatha Rao Bhonsle, learned counsel for the petitioner and Shri Bharath (K.) learned counsel for the respondent. We have carefully perused the pleadings of the parties and extant provisions of the Companies Act, 1956/2013 and the law on the issue. 7. Learned counsel for the petitioner, while reiterating various averments made in the instant company petition, as briefly stated supra, has further submitted that in pursuance to transfer of case to the Tribunal, they have complied with all the provisions of the Code by seeking to initiate corporate insolvency resolution process, under section 9 of the IBC, 2016, the instant company petition is filed in accordance with law and, there is an admitted debt and default of the corporate debtor and the same is not in dispute, and the company is commercially insolvent to pay its liabilities to the petitioner as well as to the other parties, and a qualified resolution professional namely, Mrs. Ramanathan Bhuvaneshwari, bearing Registration No. IBBI/IPA-002/IPN00306/2017-2018/10864 is proposed to appoint her as interim resolution professional, who has filed writ....
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....atuity of Rs. 9,57,696 plus interest at 10 per cent. Similarly, they have approached several authorities seeking to recover the alleged outstanding amount as claimed in the petition. 11. Initially, C. P. No. 7 of 2013 (T. P. No. 43 of 2016) and also C. P. No. 9 of 2015 (T. P. No. 71 of 2016) was filed by M/s. Pramerica ASPF-II Cyprus Holding Ltd. (petitioner) against M/s. MetroCorp Infrastructure Ltd. (respondent herein) under sections 397, 398, 399, 402, 403, 406 and 542, read with Schedule XI to the Companies Act of 1956, by, inter alia, seeking to declare the meetings of the board of directors of respondent No. 1-company as purportedly held on November 2, 2009, November 10, 2009, October 25, 2010 as illegal, null and void with consequential relief ; to declare the mortgage deeds dated November 10, 2009, November 19, 2009, November 2, 2010 signed pursuant to the aforesaid meetings and ostensible resolutions passed therein, by respondent No. 2 on behalf of respondent No. 1-company as illegal null and void and order cancellation of the said deeds of mortgage, etc. The petitioner have alleged the various acts of oppressions and mismanagements in the company petition and both the ....