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TMI Blog1961 (2) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... restore the name of the company to the register. Section 353 provides machinery whereby the registrar of companies, if he has reasonable cause to believe that a company is not carrying on business or in operation, after making certain inquiries directed by the section, may strike the name of the company off the register, and when he does that the company thereupon becomes dissolved. Subsection (6) provides : "If a company or any member or creditor thereof feels aggrieved by the company having been struck off the register, the court on an application made by the company or member or creditor before the expiration of twenty years from the publication in the Gazette of the notice aforesaid may, if satisfied that the company was at the time o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o reason to restrict that language to persons who were members or creditors of the company at the date when it was struck off; but that it is legitimate and it would be sensible to construe the language so as to extend to persons who have become members or creditors of the company since the company has been struck off, in this sense, that if the company had not been struck off, having regard to the course of events which in fact occurred, the particular person would have been a member or would have been a creditor of the company. He says that the object of this subsection, where an order is made, is to abrogate the effect of the action of the registrar in striking the company off the register and to produce a position such as would have bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as agreed to become a member of the company and his name has been entered on the register, and there cannot be any such agreement where the company is no longer in existence. He also says that such a person could never properly be put on the register as there would not be anybody qualified to put his name on the register. In the case of bearer shares, there would be no company of which the holder of the bearer shares could be deemed to be a member. It seems to me clear that nobody could become a creditor of a company after the company had ceased to exist; one cannot become a creditor of a non-existent debtor. But that is not the position of the creditors here, as I understand it, because they claim to be creditors as assignees of debts whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erwards is not a member or a creditor within the subsection. If, however, I were wrong on that point, I should have to consider whether the petitioners here acquired the characters in which they purport to petition with or without knowledge of the fact that the company had been struck off the register. Mr. Mackinnon tells me that the first petitioner acquired his shares in September, 1959, and that he and the other petitioner acquired their debts some time in 1960, and the petition as it stands alleges : "Your petitioners first became aware that the company had been so struck off at the beginning of the year 1959." If that were right, I see great force in the argument which Mr. Stamp has put forward that no one can say he is aggrieved by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... benefit would or might accrue as the result of the company being put back on the register and being able to try to turn its assets to account is not very forceful. Having regard to the period of five years which has elapsed since the company was struck off the register, the very long period since the year 1940 when there was last any effective control by directors, the fact that the register of the company has been destroyed and that, as I am told, the shareholders of the company consist in the main of a very large number of small shareholders residing in France and that the latest records of their identity and their addresses is now over 20 years old, the court ought, in my judgment, to require more cogent evidence that some really substa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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