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TMI Blog2012 (10) TMI 590X X X X Extracts X X X X X X X X Extracts X X X X ..... ng thereby the applicant must be either of a company or a shareholder or creditor, any person not falling under any of the three categories would not be entitled to invoke this provision. Hence, the learned Company Judge, to receive an application under Sub-Section 6, must satisfy himself that the petitioner had locus to approach. As in the present case on the date of the striking off not a single document would show the nexus of the respondent no.1 with the company. He came in picture in October 2008 through filing of DIN. Documents filed after 2008 would also show, he was Director since 1998 as claimed by him. Such dispute would have to be resolved in an appropriate forum. Section 560 would not give power to the Court to adjudicate as to such dispute. The court would be relying upon the admitted records that would clearly show, respondent no.1 did not feature in the records. His belated plea would also keep him at bay. His prayer for restoration would wait for a decision in his favour on his status by a competent civil court or any other appropriate forum. The learned Judge should not have restored the name of the company at the instance of someone whose identity is yet to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with law, as is available to him. Being aggrieved, three private individuals namely Gopal Navinbhai Dave, Nikhil Vasantlal Merchant and Paresh Vasantlal Merchant filed an application for recall of the order dated October 6, 2010. The judgment and order of the learned Single Judge appearing at page 200-205 would depict, the name was struck off on January 27, 2006, for good reasons as the company was not doing any business and its assets and liabilities were nil. The learned Judge further observed, prayer for recall made after four years should not be entertained. Moreover, there was serious dispute as to who was in control of the company. The learned Judge however, asked the Registrar to hear the parties and decide the issue within the stipulated period. The Division Bench set aside the judgment and order of the learned single Judge dated March 22, 2011 and remanded the matter back to His Lordship by observing, the learned Company Judge was to determine the issue and not the Registrar. Accordingly, learned Judge heard the parties afresh and disposed of the application vide judgment and order dated August 8, 2012. His Lordship allowed the application and restored the name of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... panies Act 1956. Mr. Mukherjee distinguished the Andhra Pradesh judgment in the case of A.P. State Financial Corporation VS- Mopeds India Ltd. (In Liquidation) (supra) by referring to Rule 163 and 164 of the Company (Court) Rules 1959 and contended, the adjudication by the Official Liquidator was available for judicial scrutiny of the learned Company Judge through the process of appeal whereas Section 560 should be construed as an original proceeding to be initiated before the learned Company Judge against any decision of the Registrar striking off the name of a company under Section 560. Hence, the said decision would have no application. Resuming his argument on the next day Mr. Mukherjee contended, Section 560 would pre-suppose an application before the learned Company Judge by a shareholder or a company or a creditor. Hence, it was the duty of the applicant to prove, he would fall under any of the said three categories. The learned Judge did not decide such issue. Coming to the factual matrix, Mr. Mukherjee contended, the name was struck off on January 27, 2006. The applicant being the respondent no.1 herein for the first time approached the Registrar of Companies filing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tus of the respondent no.1. Per contra, Mr. Banerjee would submit, Section 560 could not be said to be an original proceeding. According to him, even if the interpretation of the provision as contended by Mr. Mukherjee could be held as correct The Company Court could not have more power than the original power that was being enjoyed by the Registrar. According to him, if no finality arrived at by the order passed under Section 560 by the learned Company Judge no appeal could be maintained before the Division Bench that would support the other interpretation as advanced by him. He would put emphasis on the word aggrieved as contained in the said provision that would be synonymous with the word appeal . Mr. Banerjee distinguished the decision in the case of Modi Korea Telecommunication Ltd. VS Appcon Consultants Pvt. Ltd. reported in 1999 Volume-II Calcutta High Court Notes Page-107 and in the case of Liverpool London S.P. I Association Ltd. VS- M.V. Sea Success I And Another reported in 2004 Volume-IX Supreme Court Cases Page-512 to contend, unless finality arrived at no appeal under Clause 15 of the Letters Patent could be maintained. On factual matrix he contended, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter sending the second letter receive any answer, he may publish in the Official Gazette, and send to the company by registered post, a notice that, at the expiration of three months from the date of that notice, the name of the company mentioned therein will, unless cause is shown to the contrary, be struck off the register and the company will be dissolved. (4) If, in any case where a company is being wound up, the Registrar has reasonable cause to believe either that no liquidator is acting, or that the affairs of the company have been completely wound up, and any returns required to be made by the liquidator have not been made for a period of six consecutive months, the Registrar shall publish in the Official Gazette and send to the company or the liquidator, if any, a like notice as is provided in sub-section (3). (5) At the expiry of the time mentioned in the notice referred to in sub-section (3) or (4), the Registrar may, unless cause to the contrary is previously shown by the company, strike its name off the register, and shall publish notice thereof in the Official Gazette; and on the publication in the Official Gazette of this notice, the company shall stand dissolve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... placing the company and all other persons in the same position as nearly as may be as if the name had not been struck off. Hence, on a combined reading we would find authority of the Registrar to strike out a name after offering opportunity to the persons being in control of the company to justify existence and being satisfied that the company was defunct. Similarly, the aggrieved party was given right to challenge such action before the learned company Judge. The learned company Judge was competent to issue such direction and/or make such provision as seen just and proper. The learned Judge initially restored the name having been satisfied that the pre-requisites were not fulfilled. Another learned single Judge recalled the said order upon hearing rival contentions. His Lordship did so after being satisfied that the order could not be interfered with on the available materials placed before His Lordship and that too after inordinate delay. Hence, the status quo should remain having the name struck off from the register. His Lordship however observed that such order would not preclude any one to approach the Registrar for restoration. The Division Bench set aside the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intainable in case of being specifically barred under the statute. Mr. Mukherjee relied on Vijay Kumar Karwa (Supra) wherein the Apex Court observed, every order which may reasonably be considered to be a judicial order as distinct from merely administrative order is appealable in terms of Section 483 of the Act . In the case of Special Deputy Collector (LA) (Supra), the order was rendered in a contempt proceeding that the Apex Court observed, Letters Patent appeal would not be maintainable. Any order passed by a learned Single Judge, would always be appealable in absence of a statutory bar, if any, by the laws of the land. Whether an appeal would be maintainable, would however, lie on the nature of the order, that would be appealed from. In case the order does not decide any right of a party, or a controversy, the same would not be available for scrutiny by the Court of Appeal. In case the same would affect any party such decision would definitely be appealable at his instance to the Division Bench under Clause-15 of the Letters Patent. Hence, it is the nature of the order that would be relevant to maintain an appeal, unless it is statutorily barred by law. On a combined re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be in a position to examine as to the veracity of the assertion, if any, made by the Company. In short, the power of the Company Court is to examine the administrative action of the Registrar so envisaged under Section 560. If the Court acts within the four corners of the said provisions and does not step out the Court s action would not be available for appeal as no finality would arrive. Hence, ordinarily no appeal would lie from an order of the company Court under Section 560 not because what Mr. Banerjee would contend, a second appeal would not be maintainable. It would not be maintainable because such exercise of power in that event would not be a judgment within the meaning of Clause 15. Would all the orders under Section 560 be not available for appeal? The answer would ordinarily be No . There could be a peculiar situation like the present one that would make the order appealable. The invocation of the power of the learned Company Judge is stipulated under Sub-Section 6 that would enable a company or any member or a creditor feeling aggrieved by the company s name being struck off, to approach the learned Judge. Hence, the learned Judge would have to be satisfied t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned Judge should not have restored the name of the company at the instance of someone whose identity is yet to be established. We are not sure, who is correct or who is wrong that is to be established at the appropriate forum. So long he cannot establish his status he would not be entitled to invoke the provision of Section 560. The Registrar would admit, the procedural lapses occurred while striking off the name. It is for the Registrar to correct their mistake. Our judgment would not preclude so. We cannot issue any direction at the instance of someone whose locus is yet to be established. The appeal succeeds and is allowed. The judgment and order of the learned Single Judge impugned herein is set aside. The appeal is disposed of without any order as to costs. This order would not otherwise prejudice the right of the respondent no.1 to establish his locus before the Civil Court and thereafter ventilate his grievance under Section 560 or any other appropriate provision in an appropriate proceeding at the appropriate moment. Our observations made herein would certainly not debar him to do so. Urgent certified copy of this judgment, if applied for, be given to the partie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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