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TMI Blog2012 (3) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... on merits, the present application has become infructuous. It accordingly stands disposed of. Co. Pet. 200/2011 1.2 Present petition has been filed under Section 560(6) of the Companies Act, 1956 (for short 'Act') read with Rule 9 of the Companies (Court) Rules, 1959 seeking restoration of respondent No. 2 company in the register maintained by the Registrar of Companies. 2. Both the petitioners claim to have worked as consultants to the respondent No. 2 company. In the petition, it has been stated that the petitioners have not been paid their outstanding salaries amounting to Rs. 6,54,000/-. 3. Mr. Arun Bhardwaj, learned senior counsel for petitioners has drawn the attention of this Court to the Balance Sheet of the respondent No. 2 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court in OMP No. 359/2006, OMP No. 65/2008 and Ex. P. No. 334/2010. 7. Mr. Sibal states that the petitioners are colluding with the respondent No. 2 company inasmuch as the petitioners have filed the Foreign Award and other documents which could only be in the possession of the respondent No. 2 company. 8. Mr. Sibal also submits that the petitioners have no locus standi to file the present petition as they have not produced any material to show that petitioners had ever claimed their debt from the respondent No. 2 company. 9. Mr. Sibal further submits that the present petition is barred on the ground of res judicata inasmuch as Hon'ble Mr. Justice Sudershan Kumar Misra vide order dated 23rd April, 2010 has already rejected the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such directions and make such provisions as seem just for placing the company and all other persons in the same position as nearly as may be as if the name of the company had not been struck off." 13. From a perusal of the said Section, it is apparent that this Court on an application filed either by the company or by any shareholder or by a creditor can restore the company, provided it is carrying on business or if this Court is convinced that it is 'just' to restore the company. 14. Keeping in view the explicit language of Section 560(6) of the Act, this Court is of the view that it must exercise its discretion to restore a company, after looking at all the circumstances of the case. This Court is of the opinion that a petition under S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eguard the special interests of a single or limited class of affected persons. It would need a strong case to justify a refusal on these grounds...............(Page 477) [Emphasis supplied] 15. Further in the opinion of this Court, the expression 'just' would mean that it is fair and prudent from a commercial point of view to restore the company. The Court has to examine the concept of 'justness' not exclusively from the prospective of a creditor or a shareholder or a debtor, but from the prospective of the society as a whole. Once this Court is convinced that it is just to restore the company, then to refuse the relief because some thirty party may be inconvenienced by it, would be harsh. 16. In the opinion of this Court, since today th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent liabilities and provisions are also shown. The aforesaid facts have not been disputed by respondent No. 2 company despite service. It is pertinent to mention that though this Court is not adjudicating upon the claim of the petitioners on merits, but it has referred to the aforesaid facts only to show that there is some material on record to show that the petitioners are alleged creditors of the respondent No. 2 company. 20. Further in the opinion of this Court, the petitioners certainly have a locus standi to maintain the present petition as according to Section 560(6) of the Act, a petition can be filed by any creditor. 21. The argument that petitioners are in collusion with respondent No. 2 company inasmuch as they have produced cer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts favour, which was not disclosed to this Court. This fact also lends the credence to the petitioners' argument that respondent No. 2 company had not proceeded with its remedies diligently and fairly. In any event, the principle of res judicata would not apply as the present petitioners were not parties to the earlier proceedings. 25. Consequently, the present petition is allowed and respondent No. 2 company is restored to its original status. However, the intervener's submission that respondent No. 2 company had concealed the fact that it had been struck off from the arbitral tribunal and from this Court in the execution proceedings, is left open to be decided by the concerned Court in accordance with law. It is clarified that this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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