gurudath
17 January 2017 at 18:25
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.
Regards
Gurudath
9916123071
Member (Account Deleted)
17 January 2017 at 15:48
Dear Sir/Ma'am,
As per the Law of Partnership it is illegal for a partner to dispose of the "Partnership Property" without the prior consent of the other partners.
Can you please provide me a case law where a partner disposed of the "Partnership Property" without prior consent of the partners and the court held that the "property" was to be reinstated to firm.
Please see: I am requesting a case law where the property was reinstated to the firm and not any other relief like damages/compensation for the same.
Payoja
15 January 2017 at 01:03
Under a Lease Agreement, if a foreign party is Lessor and an Indian company is Lessee then in order to give any notice, intimation to the Lessee does the Lessor have to mandatorily comply with the provision of Section 20 of the Indian Companies Act, 2013 in light of Section 6?
BHARTI KOTHARI
14 January 2017 at 07:22
Sir complaint has been filled against me for cheque bouncing by a company on the basisi of ressolution. however the said ressolution does not bear the seal of company and further the blanks in the said ressolution for cheque number and date were filled by hand written without any intial after the execution of ressolution. now my query is that can it be valid ressolution and beside this what are the requirement for valid ressolution under companies act.
shivshanker jain
12 January 2017 at 19:38
i have resigned from private limited company, i want to take no due certificate from company so company can not claim any liabilities of creditors . company has not taken any sort of finance till today.
can i have format for legal no due certificate to take from compan as well as tell what all docs i should take from company for my safety
Goapl Garg
11 January 2017 at 08:22
My family consist of my grandmother, my father-mother and myself.I am student persuing higher degree course and stay away from my family in campus.My father has demised about two years ago.He was a partner in business with another person and my father and his partner has kept their residential flats as collateral towards the credit facility from their bank.
My fathers flat is used by us and it was his own self acquired property in his personal name.After death of my father , the credit facility was continuing and the Limit was enhanced and reduced two times and my mother and grand mother executed the guarantee documents on behalf of my father. I was always away from city and has never signed any document for sure.As usual, the partner of my father sysmatically distanced himself from my family and we were deprived of our dues and regular returns.A new company has been started by partner and the whole business is done thru it deserting the old partnership firm and the Bank Dues became NPA with our flat(also with partner:s flat) under mortgage with Bank.
OUR PLIGHT
Bank gave letter(13(2)) and notice (13(4)) published in two newspaper the description of the two flats, and the name of the Partner, My Grandmother, My Mother and also My Name as guarantor.I have never signed any kind of document at all.The Partner is apathetic to us and thru common well wishers we three(grand mother-mother and myself) filed an SA with DRT and Bank has filed OA with DRT.The Bank has also filed Application with the DM Office for taking possession of the two flats.Our advocate is trustworthy young professional and is of the view that the all the notices of Bank under section 13-2, 13-4 and 14 are bad as they contain my name as guarantor whereas I can not be termed as guarantor in any case as I have not been a party to any documentation after death of my father.He also contends that the Bank could not continue mortgage over my father"s flat in absence of the execution of all documents by all the legal heirs of my father who were grand mother-mother-myself and therefore the mortgage over our flat is bad in law .He has made the point as a broad issue in our case before DRT and DM.The Bank is not listening and says I had stepped into shoes of my father after his death as guarantor even without any execution by myself.At DRT the Bank is not showing to contest and lingering on the matter and the Bank is making serious efforts with DM for taking possession.
MY Question
01 Was Bank right to continue mortgage over my father Flat without my signature on documentation?
02 Am I really liable and can be termed as gurantor in this situation?
03 Is Bank"s application/case before DRT and DM is defective one and we stand to get relief there?
My advocate is sure of relief, but situation land locked as DRT is not moving ahead and in case DM allows before DRT Judgement(which we do not know) then we shall loose the flat.Also in absence of support from our business, our financial position is also weak.
Under these compelling circumstances I approach you for guidance and clarification without any malic or dis-respect towards our advocate.
Kindly help....
Anonymous
10 January 2017 at 22:46
Hello We are pvt ltd co. with 3 partners
One of the partners hv suddenly send the resignation without clearing his outstanding money dues n without clearing other work commitments. He has evn stopped coming to office... What action can be taken in this regard
Thanks
Vithal. Upari
07 January 2017 at 22:40
Dear Experts,
Please clarify whats action can be taken on the company which intentionally not transferring its shares to Director :
Case Facts : Company A has paid up capital Rs. 100000. Director X and Director Y each holding shares of Rs. 50000. Now company B purchase shares of Company A of Rs. 25000 from director X of A company. So Company B has 25% shares of A Co. The resolution passed in A co for appointment as director Mr.Z in company A. Mr. Z is also director in B private limited. All this done in 2011, but it is found that company A has not transferred shares from Mr. X to company B or no any other form filled for appointment of Mr. Z as director of A Ltd., There are no record in ROC. Now what action can be taken against Company A ? Mr.X has given physical share certificate to Company B.
Vithal. Upari
07 January 2017 at 22:36
Dear Experts,
Please clarify whats action can be taken on the company which intentionally not transferring its shares to Director :
Case Facts : Company A has paid up capital Rs. 100000. Director X and Director Y each holding shares of Rs. 50000. Now company B purchase shares of Company A of Rs. 25000 from director X of A company. So Company B has 25% shares of A Co. The resolution passed in A co for appointment as director Mr.Z in company A. Mr. Z is also director in B private limited. All this done in 2011, but it is found that company A has not transferred shares from Mr. X to company B or no any other form filled for appointment of Mr. Z as director of A Ltd., There are no record in ROC. Now what action can be taken against Company A ? Mr.X has given physical share certificate to Company B.
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Appointment of director
tere are two directors in pvt ltd company , one out of it has appointed one more director with forged documents filled at mca.
please suggest what action can be taken and how appointment can be cancelled