C Section Procedure Provisions

 ... provisions of Code of Alabama, 1975, Sections 25-5-330 through 25-5

Code of Civil Procedure and a proceeding under section 397/398 of Indian Companies Act, 1956?

I have read few judgments on a proceeding under section 397/398 of Companies Act, 1956 placing reliance on Company Law Board regulations and based on the procedural technicality. With great respect to the courts, I do strongly feel that the Company Law Board should not go technically in a proceeding under section 397/398 of the Companies Act, 1956. If there is a regulation or a provision with sound logic clearly suggesting at the strict application of the Company Law Board regulations, then, the legislative intention could be given effect to. In my opinion, the Company Law Board regulations with regard to a proceeding under section 397/398 of the Companies Act, 1956 only provides the settled procedure applicable for adjudication and it is not detailed. The Code of Civil Procedure is criticized most on the ground that it causes delay in a proceeding. But, one should remember that each and every provision in the Code of Civil Procedure has sound logic. However, when a special tribunal like Company Law Board is constituted, it is ensured that the Tribunal need not follow the Code of Civil Procedure.

A proceeding under section 397/398 of the Companies Act, 1956 is very complicated and if technicalities are looked into or insisted, then, the Company Law Board may not be able to fulfill the object of regulating the affairs of the company and especially "putting an end to the matters complained of". There is a clear difference between an ordinary civil proceeding and a proceeding under section 397/398 of the Companies Act, 1956. In a civil proceeding, the subject pertains to a past act or omission on the part of any party normally and the pendency of a civil suit may not affect the parties as such. That is not the case with a proceeding under section 397/398 of the Companies Act, 1956. In a proceeding under section 397/398 of the Companies Act, 1956, the company can be a going concern, there can be many interested parties in the company, the company has to comply with the provisions of the companies act continually, the company should maintain accounts, the company should file requisite forms and accounts, the company should borrow funds, the company should concentrate on expansion activities, there can be continuous oppression by the majority, there can be torture by the minority and the acts of oppression and mismanagement may continue irrespective of pendency of a case before the Company Law Board under section 397/398 of the Companies Act, 1956. Thus, a proceeding under section 397/398 of the Companies Act, 1956 stands on a different footing and complicated too.

We can look at a simple example. The minority qualifying under section 399 of the Companies Act, 1956 can file a petition before CLB alleging continuous acts of oppression and mismanagement. Even after the filing of the petition, the Company may tend to do certain acts amounting to further oppression and mismanagement. Technically, the Company Law Board may not consider the further oppressive acts of the majority in the proceeding and may ask the minority to challenge the further oppressive act by amending the main Company Petition. To me, it is a mere technicality denying justice to the minority and defeating the object of the Act. Again, the majority can have a grievance against the minority and can allege something against the minority in their counter to the petition filed by the Minority before the CLB under section 397/398 of the Companies Act, 1956. Under such circumstances, technically, the Board can say that the majority is not permitted to positively ask for a relief against the minority though they may eventually get the benefit of the finding of the Company Law Board. To me, it is not correct. The right approach would be to ascertain all the disputes between the minority and majority finally and giving a finding all the disputed facts as otherwise regulating the affairs of the company or putting an end to the matters complained would be difficult.

About the author: V.DURGA RAO, Advocate, Madras High Court.

Email: vdrao_attorney@yahoo.co.in

http://indiancorporatelaws.blogspot.com/

Source: http://www.articlesbase.com/regulatory-compliance-articles/code-of-civil-procedure-and-a-proceeding-under-section-397398-of-indian-companies-act-1956-3405995.html

Frequently Asked Questions

  1. QUESTION:
    Could you please read this and explain it in plain English for me?
    § 104.62 Section 289 exception.

    (a) With respect to certain public benefits, an alien applicant may be eligible by virtue of being an American Indian born in Canada to whom the provisions of section 289 of the Act apply, regardless whether the applicant is a qualified alien. If an applicant claims to be eligible on this basis, the benefit granting agency shall use the procedures in subpart B, except as specifically provided by this section. An alien to whom section 289 of the Act applies may, or may not, possess evidence of alien registra tion issued by the Service. In lieu of the requirement in section 104.22 to present evidence of alien registration, the benefit granting agency shall require the applicant to present the following documentary evidence of section 289 status:

    (1) An unexpired Form I-551 (Alien Registration Receipt Card or Permanent Resident Card) with the code S13;

    (2) An unexpired temporary I-551 stamp in a Canadian passport or on Form I-94, Arrival-Departure Record, with the code S13; or

    (3) A letter or other tribal document certifying at least 50 per centum Indian blood as required by section 289 of the Act, combined with a birth certificate or other satisfactory evidence of birth in Canada.

    (b) If the applicant presents the documentary evidence referenced in paragraphs (a)(1) or (a)(2) of this section, the benefit granting agency shall use the procedures in subpart C to the extent the benefit granting agency is required to use them to verify eligibility for a Federal public benefit, or has chosen to use them to verify eligibility for a State or local public benefit.
    I am very tired but need to have some things completed. I was wondering if you would be willing to read this for me then explain it to me in plain English. It would mostly be pertaining to the last paragraph.

    Any help is greatly appreciated as I am too tired to even concentrate on some of this stuff. Too many things going on at once. Greatly appreciated!! :-)

    • ANSWER:
      Good grief.

      OK, here's what I think it says.

      1. There's something called section 289 which lets certain American Indians born in Canada get benefits.

      2. You have to prove you qualify.

      3. You do this with a valid Form I-551 with the code S13, or an I-551 stamp on a Canadian passport with the S13 code, or an I-551 stamp on a Form I-94 with the code S13.

      4. If you are using one of those S13 code thingies, the agency has to follow "subpart C" whatever that is.

      5. You can also provide a tribal document certifying you are 50% Indian, plus a Canadian birth certificate. In that case, whatever subpart C is, it doesn't seem to apply.

      6. There's also a subpart B that seems to apply, maybe, but I can't figure out when.

  2. QUESTION:
    How to avoid (matrimonial issue) conduct of case is malafide for acceptance of writ of quo-warranto?
    My wife have taken a rented house and living with a person without marrying him. She not only cheated with me but also did fraud with the Govt. Through RTI I have obtained information from the office of the father of my wife mentioning her father’s recruitment was as General Category employee and have no marking indication in his service book. On the contrary my wife managed SC certificate by the way of misrepresentation etc. and secured WB state Govt. jobs. Departmental proceeding failed as the DM of Dakshin Dinajpur submit his cryptic report to the Women & Child Development & Social Welfare in response to my complaint addressed to the Secretary of my wife Dept. mentioning that the certificate is actually issued by the competent authority SDO, Balurghat and confirmed the genuineness of the certificate thus her Dept. closed the matter. Kindly advise if I file Writ of Qua-Warranto I have to disclose my matrimonial issue otherwise it will be suppression of facts on the other hand if I disclose the matrimonial issue she will defend the case that the conduct of the case is malafide. Thus the case may be rejected and she will get escape and real issue such abject abuse of constitutional provisions will be under carpet and will never expose. RTI has certain limit kindly advice to expose the truth.
    Secondly if I try through criminal procedure (forgery) one problem will come against public servant section 195 Cr.P.C. etc. may arise. Kindly advice I wrote many departments and direction memo have proved meaningless. State vigilance enquiry is still on the process but the said Anti Corruption Officer is under the said DM. One hearing date I have received on next month with the said SDO but RTI have limitation to expose such fraud.
    Kindly advise to expose the fraud towards my next course of action.
    Regards
    Partha Sarkar
    Sarkar.partha@rediffmail.com Mobile +919038506359.

    • ANSWER:

  3. QUESTION:
    amnesty for illegal immigrants is already in the house?
    the bill is ready in the house, if the approved it 12 millons of illegals will become permanent residents, what do you think about it??

    http://thomas.loc.gov/cgi-bin/query/D?c111:13:./temp/~c111T5Bi7J::

    H.R.264
    Save America Comprehensive Immigration Act of 2009 (Introduced in House)

    TITLE V--LEGALIZATION FOR LONG-TERM RESIDENTS

    SEC. 501. EARNED ACCESS TO LEGALIZATION.

    (a) In General- Chapter 5 of title II (8 U.S.C. 1255 et seq.) is amended by inserting after section 245A the following:

    `ADJUSTMENT OF STATUS ON THE BASIS OF EARNED ACCESS TO LEGALIZATION

    `Sec. 245B. (a) In General- The Secretary of Homeland Security may adjust the status of an alien to that of an alien lawfully admitted for permanent residence if the alien--

    `(1) was physically present in the United States for a continuous period of not less than 5 years immediately preceding the date on which this provision was enacted and has maintained continuous physical presence since then;

    `(2) has at all times been a person of good moral character;

    `(3) has never been convicted of a criminal offense in the United States;

    `(4) in the case of an alien who is 18 years of age or older, but who is not over the age of 65, has successfully completed a course on reading, writing, and speaking words in ordinary usage in the English language, unless unable to do so on account of physical or developmental disability or mental impairment;

    `(5) in the case of an alien 18 years of age or older, has accepted the values and cultural life of the United States; and

    `(6) in the case of an alien 18 years of age or older, has performed at least 40 hours of community service.

    `(b) Treatment of Brief, Casual, and Innocent Absences- An alien shall not be considered to have failed to maintain a continuous presence in the United States for purposes of subsection (a)(1) by virtue of brief, casual, and innocent absences from the United States.

    `(c) Admissible as Immigrant-

    `(1) IN GENERAL- The alien shall establish that the alien is admissible to the United States as immigrant, except as otherwise provided in paragraph (2).

    `(2) EXCEPTIONS- The provisions of paragraphs (5), (6)(A), (6)(B), (6)(C), (6)(F), (6)(G), (7)(A), (9)(B), and (9)(C)(i)(I) of section 212(a) shall not apply in the determination of an alien's admissibility under this section.

    `(d) Security and Law Enforcement Clearances- The alien, if over 15 years of age, shall submit fingerprints in accordance with procedures established by the Secretary of Homeland Security. Such fingerprints shall be submitted to relevant Federal agencies to be checked against existing databases for information relating to criminal, national security, or other law enforcement actions that would render the alien ineligible for adjustment of status under this section. The Secretary of Homeland Security shall provide a process for challenging the accuracy of matches that result in a finding of ineligibility for adjustment of status.

    `(e) Inapplicability of Numerical Limitations- When an alien is granted lawful permanent resident status under this subsection, the number of immigrant visas authorized to be issued under any provision of this Act shall not be reduced. The numerical limitations of sections 201 and 202 shall not apply to adjustment of status under this section.

    `(f) Termination of Proceedings- The Secretary of Homeland Security may terminate removal proceedings without prejudice pending the outcome of an alien's application for adjustment of status under this section on the basis of a prima facie showing of eligibility for relief under this section.'.

    (b) Clerical Amendment- The table of contents is amended by inserting after the item relating to section 245A the following:

    `Sec. 245B. Adjustment of status on the basis of earned access to legalization.'.

    SEC. 502. LEGALIZATION PROVISIONS FOR CHILDREN.

    (a) In General- Chapter 5 of title II (8 U.S.C. 1255 et seq.), as amended by section 201, is further amended by inserting after section 245B the following:
    sorry the link is not working, try this:

    http://thomas.loc.gov/cgi-bin/bdquery/z?d111:h.r.00264:

    • ANSWER:
      I think that the amnesty should be given to those who are really working and to those that are behaving good.


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