Oppression and Mismanagement remedy u/s 241 with Draft Petition format


Oppression and Mismanagement remedy u/s 241 with Draft Petition format 

New Act has retained the remedy of oppression and mismanagement .Section 397,398 and 401 of the companies act,1956 are merged and bought into companies act,2013 with few changes to make it more effective.

This is article of the series of editorials written by the ADV ACS Jeetam Kumar Saini on Corporate Laws(He also Written many articles Including Companies Act, 2013, SEBI, RBI Regulations, IBC)advocatejeetamsaini@gmail.com - 9785949998



Section 241 read with section 242 

Analysis of this section with some question



  • Has the meaning of oppression changed?
  • How do the significant changes in other provisions of the companies act, 2013 affect the scope of mismanagement ?



Oppression


An act of cruelty, severity ,domination or excessive use of authority


An act or omission may also amount to oppressive conduct if it is designed to achieve an unfair advantage.

Oppression means burdensome, harsh and wrongful.


Meaning as analysed by case laws


Following Judgement could be usefully referred to :


Dale and Carrington Investment (P) Ltd. and Anr. v Manu/sc/0748/2004: P. K Prathapan and Ors.(2005) 1SCC212

Kamal Kumar Dutta and Anr. v. Manu/sc/8408/2006 : Ruby General Hospital Ltd. and Ors. 2006(7) SCALE668.


Link of Draft Petition u/s 241 for your ready reference 



Disclaimer: The entire contents of this document have been prepared on the basis of relevant provisions and as per the information existing at the time of the preparation. Although care has been taken to ensure the accuracy, completeness and reliability of the information provided, I assume no responsibility therefore. Users of this information are expected to refer to the relevant existing provisions of applicable Laws. The user of the information agrees that the information is not a professional advice and is subject to change without notice. I assume no responsibility for the consequences of use of such information. IN NO EVENT SHALL I SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL OR INCIDENTAL DAMAGE RESULTING FROM, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE INFORMATION.(Information of Above are collected from respective law committee)


Requirement of 3 Month window While Filing petition under sec 14 & 18 (Conversion of public into private company)


NCLT CASE DIGIEST  



Q. IS There Specific Requirement of 3 Month window While Filing petition under sec 14 & 18 (Conversion of public into private company) 


This is article of the series of editorials written by the ADV ACS Jeetam Kumar Saini on Corporate Laws(He also Written many articles Including Companies Act, 2013, SEBI, RBI Regulations, IBC)advocatejeetamsaini@gmail.com - 9785949998


Case  

Siddhi Ganesham Commodites Broking Ltd Vs ROC

Held that Petition was field  within a period of 90days which is not in consonance with rule-68 of NCLT Rule,2016 and in this circumstances, this petition may be returned by the registry and after the completion of period of 90 days, let it be filed before the appropriate authority.


Disclaimer: The entire contents of this document have been prepared on the basis of relevant provisions and as per the information existing at the time of the preparation. Although care has been taken to ensure the accuracy, completeness and reliability of the information provided, I assume no responsibility therefore. Users of this information are expected to refer to the relevant existing provisions of applicable Laws. The user of the information agrees that the information is not a professional advice and is subject to change without notice. I assume no responsibility for the consequences of use of such information. IN NO EVENT SHALL I SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL OR INCIDENTAL DAMAGE RESULTING FROM, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE INFORMATION.(Information of Above are collected from respective law committee)



Is there difference between ‘Storage or warehousing’ services and ‘renting of storage premises’ as per liablity of GST


GST CASE DIGIEST 


Q. Where Applicant, a Cargo Handling company, rent storage premises to its customer, such activity carried out by it would be classified as “Rental or Leasing services involving own or leased non-residential property’ liable to GST


This is article of the series of editorials written by the ADV ACS Jeetam Kumar Saini on Corporate Laws(He also Written many articles Including Companies Act, 2013, SEBI, RBI Regulations, IBC)advocatejeetamsaini@gmail.com - 9785949998


Case

Rishi Shipping, In re[2018] 147 (AAR- Guj) 


Held that there is difference between ‘Storage or warehousing’ services and ‘renting of storage premises’. ‘Storage or warehousing’ normally makes arrangement for space to keep the goods, loading, unloading, make security arrangement and provide insurance cover etc. In case where person only rents the storage premises, he does not provide other services .Mere renting space cannot be said to be in nature of service provide for storage or warehousing of goods and as per nature of service provided by the applicant , as described in the application, it is clear that applicant only rent the storage premises .Therefore , the applicant is required to pay Goods and Service Tax at 18%(CGST 9% + GGST 9% or IGST 18%) Service Accounting Code -997212)



Disclaimer: The entire contents of this document have been prepared on the basis of relevant provisions and as per the information existing at the time of the preparation. Although care has been taken to ensure the accuracy, completeness and reliability of the information provided, I assume no responsibility therefore. Users of this information are expected to refer to the relevant existing provisions of applicable Laws. The user of the information agrees that the information is not a professional advice and is subject to change without notice. I assume no responsibility for the consequences of use of such information. IN NO EVENT SHALL I SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL OR INCIDENTAL DAMAGE RESULTING FROM, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE INFORMATION.(Information of Above are collected from respective law committee)

 


2 LANDMARK JUDGEMENTS IN TRADEMARK




This is article of the series of editorials written by the ADV ACS Jeetam Kumar Saini on Corporate Laws(He also Written many articles Including Companies Act, 2013, SEBI, RBI Regulations, IBC)advocatejeetamsaini@gmail.com - 9785949998


1. Yahoo!, Inc. v Akash Arora & Anr [1999 (19) PTC 201 (Del)] :-The first decision on the protection of IP rights on the Internet. 


In what is known till date as a Landmark judgment in cybersquatting, the Delhi High Court held that a domain name served the same function as a trademark and was therefore entitled to equal protection. As the domain names of the plaintiff ‘Yahoo!’ and defendant ‘Yahoo India!’, were nearly identical and phonetically similar, there was every possibility that internet users would be confused and deceived into believing that the domain names had a common source or a connection. The court further observed that the disclaimer used by the defendants was not sufficient because the nature of the Internet is such that use of a similar domain name cannot be rectified by a disclaimer, and that it did not matter that ‘yahoo’ is a dictionary word. The name had acquired uniqueness and distinctiveness and was associated with the plaintiff.The Bombay High Court, in Rediff Communication v. Cyberbooth & Anr 2000 PTC 209 also observed that the value and importance of a domain name is like a corporate asset of a company. 

2. DM entertainment v Baby Gift House and ors. [MANU/DE/2043/2010] :-
Celebrity Merchandising.
Daler Mehndi, the most famous pop star hailing from Punjab has created a niche audience and is immensely popular amongst Punjabi-pop music lovers. The appellant company was incorporated in 1996 to manage the artist’s escalating career. The crux of the case is that the defendants had prolific businesses in selling miniature toys of Daler Mehndi and majorly cashed on to his popularity. Majorly aggrieved, the plaintiff company filed for permanent injunction from infringing the artist’s right of publicity and false endorsement leading to passing off.
The plaintiff company had been assigned all the rights, titles and interests in the personality of the artist along with the Trademark, Daler Mehndi. It was contended by the plaintiff that the unauthorized or unlicensed use of or any part of the reputation of the artist, with respect to goods or services of any manner will lead to make an impression on the public that the goods or services are associated with the singer. And hence, it was submitted that such a use would lead to passing off. It was further averred by the plaintiff that such use was done for commercial exploitation without adequate permission from the person or any other authorized by him, shall constitute infringement of the person’s right to publicity.
Section 29 of the Trademark Act-1999 (hereinafter the Act) lays down the aspects of infringement of trademark. It elucidates that a when a person is using, in course of trade any mark, which is identical or deceptively similar to a registered mark and which he is not entitled or licensed to use shall be deemed to infringe onto the rights of the person who has the lawful right over the mark.
The Act does not give a specific description of passing off as a result it has been derived through judicial precedents drawn from common law. Put simply , passing off would occur when the mark is not only being used deceptively similar to the mark of another but it is being used to create confusion in the minds of the consumer that results in the damage or loss of business for the person or company who/which is the lawful owner of the trademark.
Character merchandising is an area of law which is unexplored in India. The first case that dealt with this was Star India Private Limited v Leo Burnett India (Pvt.) Ltd. The courts in India in these earlier cases, had not dealt with publicity rights. In this case the Court did so quite emphatically. The court meted out a compensatory amount to the tune of Rs. 1,00,000 to the Plaintiff. The intent of the judiciary is clear.

Disclaimer: The entire contents of this document have been prepared on the basis of relevant provisions and as per the information existing at the time of the preparation. Although care has been taken to ensure the accuracy, completeness and reliability of the information provided, I assume no responsibility therefore. Users of this information are expected to refer to the relevant existing provisions of applicable Laws. The user of the information agrees that the information is not a professional advice and is subject to change without notice. I assume no responsibility for the consequences of use of such information. IN NO EVENT SHALL I SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL OR INCIDENTAL DAMAGE RESULTING FROM, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE INFORMATION.(Information of Above are collected from respective law committee) 

GST QUESTION ANSWER WITH CASE LAWS- Case 1


This is article of the series of editorials written by the ADV ACS Jeetam Kumar Saini on Corporate Laws(He also Written many articles Including Companies Act, 2013, SEBI, RBI Regulations, IBC)advocatejeetamsaini@gmail.com - 9785949998



Q- Where AA had seized goods of assesses in transit and also vehicles and issued on it a notice demanding certain amount of tax, AA was directed to release  goods and vehicle forthwith on payment of tax as indicated in show cause notice (Partly in favour of revenue )

CASE
Iqra Roadways (India) V State of U.P(2018)

The adjudicating Authority had seized goods of the assessee intransit and issued on it a notice demanding certain amount of tax. He had also seized vehicle.

Held

That since in instant case factual disputed issue were involved and penalty processing were already initiated, detaining authority was to be directed to release goods and vehicles forthwith on payment of tax as indicated in show cause notice.

Disclaimer: The entire contents of this document have been prepared on the basis of relevant provisions and as per the information existing at the time of the preparation. Although care has been taken to ensure the accuracy, completeness and reliability of the information provided, I assume no responsibility therefore. Users of this information are expected to refer to the relevant existing provisions of applicable Laws. The user of the information agrees that the information is not a professional advice and is subject to change without notice. I assume no responsibility for the consequences of use of such information. IN NO EVENT SHALL I SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL OR INCIDENTAL DAMAGE RESULTING FROM, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE INFORMATION.(Information of Above are collected from respective law committee)