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2021 (12) TMI 743 - HC - Companies LawSeeking a direction to the Registrar of Companies (ROC) to mark the companies enclosed at Exhibit I to the OLR as 'Active' - also seeking permission to Official Liquidator to remove these companies from the register of the voluntary liquidation companies maintained by the Official Liquidator - Appellants grievance stems from the fact that despite the Appellants being diligent in following up with various authorities for the purpose of voluntary winding up, the Official Liquidator filed a report and obtained an ex-parte order against the Appellants. HELD THAT - Admittedly, the publication under Section 248(5) of the Act was made on 14th December 2018 and by virtue of Section 250 of the Act, the Appellant No.1 Company would cease to exist from such date. The provisions of the Act as pointed out by Mr. Shah, clearly contemplate that the appropriate remedy for the Appellants is to approach the NCLT under Section 252 of the Act. This Court would not have the powers to pass orders under Section 252 of the Act since the exclusive jurisdiction lies with the NCLT. In view of Sections 250 and 252 of the Act, the interpretation of Section 248(8) of the Act canvassed by the Learned Advocate for the Appellants would go contrary to the scheme of the Act, which is impermissible. To read into Section 248(8) of the Act so as to confer jurisdiction on this Court would run contrary to the scheme and spirit of the Act and more importantly for the purpose for which the NCLT was constituted. Appeal disposed off.
Issues:
1. Interpretation of Section 248(8) of the Companies Act, 2013 regarding the jurisdiction of the High Court in ordering voluntary winding up of a struck-off company. 2. Jurisdiction of the High Court versus the National Company Law Tribunal (NCLT) in matters related to dissolved companies under Section 248 of the Act. Issue 1: Interpretation of Section 248(8) of the Companies Act, 2013 The High Court was approached with an appeal challenging an order passed by the Company Court seeking direction to mark certain companies as 'Active' and remove them from the register of voluntary liquidation companies. The Appellants contended that despite being diligent in winding up procedures, the Official Liquidator obtained an ex-parte order. The Appellants argued that the High Court could order voluntary winding up even if a company is struck off, citing Section 248(8) and Rule 4 of the Companies (Transfer of Pending Proceedings) Rules, 2016. They also relied on Section 518(1)(a) to assert the High Court's jurisdiction in winding up matters. Issue 2: Jurisdiction of High Court vs. NCLT in Dissolved Company Matters The Official Liquidator argued that the High Court lacks jurisdiction in matters related to dissolved companies under Section 248, as the NCLT has exclusive authority. Referring to Sections 252 and 250 of the Act, the Official Liquidator emphasized that a dissolved company ceases to exist and must seek remedy through the NCLT. Section 430 was cited to highlight that the Civil Court's jurisdiction is barred in matters under the Act's purview. The High Court concurred, stating that the appropriate remedy for the Appellants is to approach the NCLT under Section 252 for restoration of the company's name in the register of companies. The High Court held that interpreting Section 248(8) to confer jurisdiction on the High Court would contradict the Act's scheme. The Court emphasized that such an interpretation would go against the Act's spirit and the NCLT's purpose. The Appellants were advised to obtain necessary orders from the NCLT for restoring the company's name before approaching the High Court. The Court kept the rights and contentions of both parties open for future consideration. The NCLT was requested to consider the ROC officer's statement and dispose of the appeal promptly if filed under Section 252 of the Act. The Appeal was disposed of with no order as to costs.
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