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MCI issues notification for constitution of the NCLT and NCLAT

Ministry of Corporate Affairs issues notification for constitution of the National Company Law Tribunal (NCLT) and National Company Law Appellate Tribunal (NCLAT); Hon’ble Justice S.J. Mukhopadhaya, Judge (Retd.), Supreme Court of India joins a

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Posted by gurudath

SPL [Complainant] is a private company established in 2003 and they are engaged in manufacturing Iron bars etc.
Whereas, M/S. AML [ Accused] is engaged in Manufacture of Steel with Registered office at Hyderabad.
M/S. AML have been purchasing the Sponge Iron- Lumps from M/s. SPL since several years on credit facility. Over the years the accused have gained the trust and by misusing such trust, it had purchased the Iron ore for its factory under various invoices by placing orders to them. The details of the total supplies made during the period for 01.04.2015 to 31.03.2016 under various invoices.

In-spite of Acknowledgement of receipt of the goods in good condition, M/S.AML has defaulted in making payment against overdue amount and Yet to issue the C-Form for submitting to the Sales Tax Department.
The complainant raised invoice against the Purchasing Orders placed by accused, the following three Invoices, are in respect to the three cheques which has been returned un-paid by the Accused. (Cheque Bounced)

AML (accused) in its letter dated 5th March 2016 it had written a letter stating that the Company is a sick company and its case is registered duly with H'ble BIFR (Board for Industrial & Financial Reconstruction), NewDelhi. Under the defence of reference to BIFR requested the complainant not to present the cheques against the material supplied.

According to accused, BIFR, while registering the reference of company dated 17.11.2015 has restrained the accused from disposing of or alienating in any manner any assets of the company without the consent of the Board. The accused is a sick company and presently running the unit at low capacity hence not able to realize the pending amount. And hence, the accused cannot be forced to honour the post dated cheques.

The Management of the Complainant have gone ahead and filed the case under Section 138 of Negotiable instrument Act stating the criminality of dishonour of cheques. But, Contention of Accused seems to be that the restraint order passed by BIFR remains operative based on facts and circumstance, for instance, before the date on which the cheque was drawn or before expiry of the statutory period of 15 days after notice, a restraint order of BIFR under section 22-A was passed against the company then it cannot be said that the offence under section 138 NI Act was completed.

Here, It is evident from the action of the accused, that there is mala-fide intention to commit fraud on the complainant(supplier) as the accused initiated the above purchases of materials despite the knowledge of filing case with BIFR. Whereas, the accused is actually economically wealthy person and owning huge properties and owning various companies with same management.
The accused have proved to be habitual offender as accused has indulged in to same modus-operandi with other material supplier company.

What could be the remedy for ensuring the recovery of money and C-Form.
Filing a case of corporate Fraud
or can the liability be fixed on group company
or can BIFR approval be obtained as a Interim Relief for allowing the accused to release the fund(accused does not seems to be interested in payment).

Or a suit only under section 138 of NI Act.

Kindly advice your point of view.


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Updated on : 18/01/2017 02:12:02

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