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1. Appellate Tribunal PMLA –
Constitutional Validity – Articles 14,19(1)(g), 21, 50 and 323B – Prevention of
Money Laundering Act, 2002 – S. 1
The petitioner a member of
Bar Council, filed writ petition by way of public interest litigation seeking
to declare various sections of the Act more particularly those relating to
constitution of the adjudicating authority and the Tribunal, as ultra vires of
articles 14,19(1) (g) , 21,50 and 323B of the constitution. It has also been
pleaded that those provisions are in breach of the scheme of the
constitutional provisions and power of judiciary. The petitioner sought for
quashing of said provisions as same are violative of basic constitutional
guarantee of free and independent judiciary and therefore, are beyond the
legislative competence of parliament.
As regards the defects in the
Act, on the request of the court, certain amendments have been suggested by
the petitioner and others, in the line of the constitutional provisions as
interpreted by the Court in its various decisions. It is necessary that the
court should draw a line which the executives may not cross in their misguided
desire to take over judicial functions and powers of the state exercised by
duly constituted court. While creating avenues of the judicial forums, it is
the duty of the Government to see that there is no breach of constitutional
scheme of separation of powers.
The court held that the
amended / proposed provisions are in tune with the scheme of Constitution as
well as with the principles laid down by the Supreme Court, the same are to be
approved and the Union of India is to be directed to implement the proposed
provisions, if not so far amended as suggested, as expeditiously as possible .
The writ petition disposed of.Pareena Swarup vs. Union of India [2008] 88 SCL
1 (SC)
2. Company Law Board –
Powers – Saving the inherent powers of Bench –Regulation Regulations, 1991 –
Regulation 44
The respondent had originally
approached the CLB with allegations of oppression and mismanagement by the
Appellants u/s. 397 and 398 stating that their rights as shareholders of the
company were being affected by the action of the Appellant’s group. The CLB,
with a view to protecting status quo pending the company petition, passed an
interlocutory order directing the company not to give effect to any resolution
which may be passed by the AGM pertaining to the directorship of the company.
Subsequently, there was understanding between the parties to settle the
dispute between them and consent order was passed recording the compromise.
The appellants taking advantage of consent order, ignoring interlocutory order
of the CLB, excluded the first respondent from the office of director of the
company. On company application filed by the respondents, the CLB passed the
impugned order holding, interalia, that the removal of the first respondent
from the office of director of the company was justified.
On appeal, the appellant
concluded that the consent order was final order in company petition, and that
the CLB in entertaining company application and passing the impugned order,
had exceeded its powers under the Regulation 4 as the consent order had
rendered the CLB ‘functus officio”.
The court held that the from
the impugned order, it was clear that the intention of the CLB was only to
prevent the abuse of process of the Bench and to meet the ends of justice and
therefore, considering the facts and circumstance, there was no error or
infirmity in the impugned order passed by the CLB, so as to exercise its
powers under the Regulation 44. Hence the impugned order passed by the CLB was
to be confirmed.
Sugavaneswara Spg. Mills Ltd.
vs. S. Arunachalam [2008] 88SCL 31 (Mad).
3. High Court – Final order
of Special Court could be subject to an appeal to Supreme Court but an order
passed by the Special Court, which are of interlocutory nature, can be subjected
to judicial review of the High Court – Special Court (Trial of Offence Relating
to Transaction in Securities) Act, 1992 –s. 10 – Articles, 226 and 227 of the
Constitution of India
On a complaint, the
Additional Metropolitan Magistrate issued process against the accused for
offence punishable under Section 420 and 34 of the IPC, 1860. The matter was
transferred to the Special Court and an application for issuance of process
against the petitioner was filed u/s. 319 of Cr.P.C, 1973. The Special Court
held that prima facie, case has been made out by the complainant for issuance
of process against the petitioner and hence, the process was issued against
the petitioner for offence punishable u/s. 420, 120 B, 109 read with sec.34 of
the IPC. The petitioner filed the instant Writ petition against the order of
the Special Court mainly on the ground that the order was not an order in
terms of sec.319 of the Criminal Procedure Code, as no evidence has been
discussed by the Special Judge, on the basis of which he concluded that there
was evidence which warranted arraying of the petitioner as an accused in the
case. The respondent raised a preliminary objection that the petition was not
maintainable and if the petitioner was aggrieved with the order passed by the
Special Court, the only remedy before it was to file an appeal before the
Supreme Court in terms of the Section 10.
The court held that if it
followed the principles laid down by the Supreme Court in case of Lok Ram vs.
Nihal Singh [2006] 10 SCC 192 then the order of the Special Judge could not be
sustained. The statement made by the witness before the High Court had not
been gone through and it was left to the Special Judge to pass a fresh order
keeping in view the law laid down by the Supreme Court on various occasions
with respect to scope of S.319 of the Cr. P. C. The evidence has not been
scrutinized because the appeal against the order of the Special Judge was not
being heard. Therefore the matter was to be reman-ded back to be decided
afresh by the Special Judge .
ITC Ltd. vs. Ramesh Nayak
[2008] 87 SCL 300 (Bom)
4. Oppression and
mismanagement –Expression ‘issued share capital’ in the Companies Act –
Interpretation of statute – Rule of Construction ‘Noscitur a Socils’ – Companies
Act – S. 399(1).
The issued, subscribed and
paid up capital of the respondent company was consisting of equity shares and
preference shares. The appellant company, holding 14.8% of equity share
capital in the respondent on assumption that the expression ‘issued share
capital’ of the company in clause (a) of sub-section (1) of s.399 means issued
‘equity share capital’, filed a petition u/s. 397/398 alleging oppression and
mismanagement on part of the respondents and its directors. The respondents
raised a preliminary objection as regards maintainability of petition
contending applicant at no time held more than 2.01 per cent share capital in
it and as such neither on the date when the appellant became the member nor on
the date of filing the petition, the appellant held more than 1/10th allotted
share capital of the company. The Company Law Board dismissed the petition
holding that the expression ‘issued share capital’ includes both equity and
preference share capital and as the appellant held less than 1/10th of the
‘issued share capital’ the petition was not maintainable.
The High Court held that
there was no scope for applying the rule of ‘Noscitur a Socils’ in
interpreting the expression’ issued share capital’ of the company in section
399 (1) as the said expression is a wide expression in itself. It is a wide
expression deliberately used by the Legislature with a view to include both
equity and preference share capital issued by the company. It keeps no company
to other words and it must be interpreted and understood in its natural ,
ordinary or popular meaning. Further the court held that the Company Law Board
was entitled to dispose of the petition on the preliminary issue of law i.e.
on the maintainability of the petition .
Northern Projects Ltd. vs.
Blue Coast Hotels and Resorts Ltd. [2008] 88 SCL 74 (Bom)
5. Share capital – Reduction
– Companies Act, 1956 – S 100 read with S 101 & 103
The petitioner filed a
petition under section 101 seeking confirmation of proposed reduction of
paid-equity capital by 10 percent due to cash losses suffered by its inability
to service its debts; it approached financial institutions and banks, for
restructuring its debts under Corporate Debt Restructuring Mechanism. The
restructuring has been approved by the joint lenders according to which
petitioner was required to reduce the share capital by 10 per cent. The
proposed reduction in the equity capital and the company petition seeking
confirmation were meant to meet the above requirements of the financial
institutions/banks. It was further stated that the proposed reduction had been
approved by the shareholders of the company by special resolution duly passed
in accordance with the section 189 at the annual general meeting. The
Petitioner filed a detailed affidavit annexing thereto copies of the approved
letter of the secured creditors who had agreed to reduce the interest
liability and satisfactorily explained the reason as to why the increase in
promoters stake had been made a condition precedent to the said package. They
also filed copies of edition of news papers of due publication of notice of
the petition.
The court held that no one
had filed any objections to the proposed reduction of capital and was
satisfied that the proposed reduction of capital of the petitioner-company
deserved to be confirmed. Accordingly, reduction of issued and paid-up equity
share of the petitioner-company as approved by the shareholders vide special
resolution passed in the annual general meeting was to be confirmed and the
minute confirming the reduction was to be approved as per section 103 (1) (b)
.Accordingly the court confirmed the reduction of capital.
Pasupati Acrylon Ltd. In re
[2008] 88 SCL 93 (All).
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