Juggilal Kamplapat Holding Ltd. In re (2006) 132 Comp. Cas 237 (All.)

Facts

The company application u/s 391, 394 of the Companies Act, 1956 was jointly filed by JKH Ltd. (transferee co.) JKI Ltd. (transferor company No. 1) and KI Ltd. (transferor company No. 2) to approve the scheme of amalgamation for the amalgamation of transferor company Nos. 1 and 2 with the transferee company.

The Regional Director, Ministry of Company Affairs in his affidavit raised a objection, that the authorized share capital of the transferee company shall automatically increased by addition of authorized share capital of the transferor companies. Therefore the transfer of authorized share capital could only be done after following the procedure prescribed under the relevant provisions of the Companies Act, 1956, payment of requisite fees to the Registrar of Companies and stamp duty to the State Government.

Held

The Hon’ble High Court relying on the decisions of Bombay High Court in the case of PMP Inds. Ltd. In re (1994) 80 Comp. Cas. 289 (Bom) and Gujarat High Court in the case of Maneck Showk and Ahmedabad Manufacturing Co. Ltd. In re (1970) 40 Comp. Cas 819 (Guj.) held that when the transferee companies and transferor company had already paid the prescribed fee of their respective authorized share capital and since the combined authorized capital of the transferee company did not exceed the authorized capital of all the three companies no further fees or stamp duty was required to be paid.

Dr. Sampathkumar B.V. vs. Dr. K.G. V. Lakshmi (2006) 132 Com. Cas. 160 (Karn.)

Facts

The cheque issued by the respondent when presented was dishonoured. On a complaint filed u/s. 138 of the Negotiable Instruments Act, 1881, the respondent contended that no prosecution could lie under the section as a blank cheque was issued as security for repayment of the loan of Rs. 75,000/-. The trial court dismissed the complaint on the ground that the respondent admitted the issuance of blank cheque as security.

Held

The Hon’ble High Court observed that there was proof of issuance of cheque and its dishonour therefore a presumption regarding consideration arose under s. 139 of the Act which was not rebutted by the respondent.

The Court further held that a cheque whether issued for repayment of loan or as security makes little difference u/s. 138 of the Act and in the event of dishonour the legal consequences would be the same without distinction.
The accused was sentenced to pay fine of Rs. 1.50 lakhs, in default to undergo simple imprisonment for a period of six months.

Central Government of India & Ors. vs. Krishnaji Parvetesh Kulkarni AIR 2006 SC 1744 – 2006 (4) SCC 275

Indira Vikas Patra (IVP) is akin to an ordinary currency note. It bears no name of the holder. Just as a lost currency note cannot be replaced, similarly a lost IVP cannot be replaced by the post office.

Rule 7(2) of IVP Rules provides that a certificate lost, stolen, mutilated, defaced or destroyed beyond recognition will not be replaced by any post office. Similar is the position as regards the certificate which is either lost or stolen.

Note: There was no challenge to the legality of the Rule 7(2) of the IVP.

IRAM FEROZ VS. AYAZ GADHIYA (2006) 132 Comp. Cas 194 (Bom)

Facts

A summary suit is filed by the plaintiff against the defendant to recover the amounts lent and advanced based on a dishonoured cheque. The defendant admits that the loan was advanced.

The defendant contended that a summary suit on a dishonoured ‘cheque’ is not maintainable as cheques are not included within the provisions of Order 37 rule 1, sub-rule (2) of the Code of Civil Procedure which only refers to
“(a) suits upon bills of exchange, hundies and promissory notes;”

Held

The Hon’ble Bombay rejecting the above contention of the defendant observed that the terms ‘bill of exchange’ and ‘cheque’ are not defined in the Code of Civil Procedure therefore the meaning must be derived from the Negotiable Instrument Act. Wherein sec. 6 defines cheque as under:

“6. Cheque – A `cheque’ is a bill of exchange drawn on a specified banker…..”

The Hon’ble court further referring to the decision in the case of M/s. Purnima Jaitly (MS) vs. Ravi Bansi Jaisingh AIR 2003 Bom 494 held that a suit on a dishonoured cheque issued by the defendant in favour of the plaintiff is maintainable as a summary suit.

Gurswarup Joshi vs. Beena Sharma & Ors. (2006) 5 SCC 119

Facts

In an appeal against order granting probate passed by Addl. District Judge. The High Court passed an interim order in mandatory form directing enforcement of the will.

Held

The Hon’ble Apex Court observed that

Whether the terms stipulated in the will were capable of being implemented was a matter of interpretation by High Court. The High Court was first required to determine validity or otherwise of the will.

The effect of interim order would be that not only the appeal would became infructuous but parties would also be forced to give effect to the provisions of the will.

The Hon’ble Court further relying on the decision of Chandi Prasad vs. Jagdish Prasad (2004) 8 SCC 724 observed that when an appellate court exercise its power and passes a judgement, the same would be replaced by the judgment of the lower court and only its judgment would be treated as final.

The Hon’ble Apex Court therefore held that grant of mandatory injunction in the circumstances of case suffered from manifest error.