9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2017 (6) TMI 1338 - HC - Companies LawRestoration of name of the company in the Registrar of members - section 252(3) of Companies Act - HELD THAT - On the plain reading of the said provisions it is crystal clear that the Company, or any member, or any creditor can present an application within a period of 20 years from the publication made in the official Gazette of the notice to strike out the name of such Company from the register of the Registrar of Companies and that any of the above referred three category of persons can maintain an application to restore the name of the Company in the register of the Registrar of Companies. The said provisions, amongst others, also permit the restoration of a Company not only if it is shown that the said Company was carrying on business, or was in operation, but also if it was otherwise just that the Company be restored to the register. In the present case in hand, as mentioned hereinbefore, the petitioner No.1 Company is the owner of land ad-measuring 10 bigha- 4 kathas - 19 lechas at Bongaigaon District. Hence, this appears to be a fit case wherein this Court may take judicial notice of the ever rising market value of land. In this regard, I find support from the case of Rattan Arya V. State of Tamil Nadu, 1986 (4) TMI 346 - SUPREME COURT . The ownership of such a big estate is indicative of the fact that if there is no owner of any land, there is every likelihood of the said land will waste away by encroachment or otherwise or it will become a den for anti-social activities. Fraudulent sale of land in our Country is not uncommon, which would be revealed from the perusal of innumerable case reports where land involved in the suit or proceeding was illegally and fraudulently transferred. This application deserves to be allowed.
Issues Involved:
1. Restoration of the company’s name in the register of the Registrar of Companies. 2. Legitimacy of the petitioner's claim as a director. 3. Compliance with statutory requirements and formalities. 4. Potential prejudice or loss to shareholders. 5. Validity of the notification striking off the company’s name. Detailed Analysis: Restoration of the Company’s Name: The primary issue is whether the name of the petitioner company, Felpact Pvt. Ltd., should be restored to the register of the Registrar of Companies, Shillong. The court noted that under section 560(6) of the Companies Act, 1956, a company, or any member or creditor thereof, can apply for restoration within 20 years from the publication of the notice in the Official Gazette. The court found that the petitioner company owns significant land, and it is just to restore the company to prevent potential misuse or encroachment of the land. The court also took judicial notice of the increasing real estate prices, which would benefit all shareholders if the company is restored. Legitimacy of the Petitioner’s Claim as a Director: The respondents challenged the petitioner's claim as a director, arguing that no valid board or general meetings were held to appoint him. The court, however, stated that under section 560(6), any shareholder can file an application for restoration, thus making the petition maintainable irrespective of the petitioner's directorial status. The court did not venture into adjudicating the competency of the petitioner as a director but acknowledged his right to file the application as a shareholder. Compliance with Statutory Requirements and Formalities: The court directed the company to file all necessary statutory documents with the Registrar of Companies within 45 days of restoration. The petitioner No.2, claiming to be the director, was instructed to ensure compliance. The court also mentioned that any further statutory formalities under the Companies Act, 1956 (since repealed) and the Companies Act, 2013, should be completed within the specified period. Potential Prejudice or Loss to Shareholders: The court opined that no shareholder, including respondents No.2 to 8, would suffer any perceivable loss or damage if the company is restored. On the contrary, restoration would allow shareholders to stay informed about the company's affairs and potentially benefit from any dividends issued. The court emphasized that the legislative intent behind section 560 is to prevent unnecessary striking off of companies and to allow aggrieved parties to seek restoration. Validity of the Notification Striking Off the Company’s Name: The court found that the notification dated 08.08.2007, which struck off the company’s name, was sent to an incorrect address ("FELPACT PVT LTD, ASSAM, Assam, INDIA") instead of the registered office address ("H/O DP KHOUND, PO. DHALIGAON, DHALIGAON, ASSAM, INDIA"). The Registrar of Companies did not contest this discrepancy. Therefore, the notification was deemed unsustainable both factually and legally. Additionally, the court noted that there was no evidence of the notification being published in the Official Gazette, which is required to start the 20-year limitation period for restoration applications. Conclusion: The court allowed the petition, ordering the restoration of the petitioner company’s name to its original status. The company was directed to comply with all statutory requirements within 45 days of restoration. The restoration was subject to a payment of ?25,000 to the Official Liquidator’s common pool fund and completion of any other formalities, including payment of applicable late fees or penalties. The court also granted liberty to the Registrar of Companies to initiate penal action against the company for any defaults in compliance with section 162 of the Companies Act, 1956.
|
