9911796707
TMI Blog2016 (7) TMI 1477X X X X Extracts X X X X X X X X Extracts X X X X ..... such other or further steps as are required under the Act to formalise the restoration of company. - Company Petition No. 250 of 2015 - - - Dated:- 1-7-2016 - S.V. Bhatt, J. For Appellant: S. Ravi JUDGMENT S.V. Bhatt, 1. One Velamti Chandrasekhara Janardan Rao is the petitioner. The petition is filed under section 560(6) of the Companies Act, 1956 (for short the Act ) to cancel the striking off name of the respondent-company/M/s. Sree Raja Rajeswari Paper Mills Ltd. (for short the company ) pursuant to application dated March 9, 2011 and to restore the name of the company in the register maintained by the Registrar of Companies. 2. Heard Mr. S. Ravi for the petitioner. 3. The petitioner alleges that he was a shareholder of the company. The company was set up in Hanuman Junction, Krishna District to manufacture and do business in paper boards. On July 17, 1999, the managing director Sri A. S. V. R. G.K. Prasad passed away. Thereafter, the board comprised of Dr. V.V. Gopala Krishna and Sri V. V. R.B. Prasad. According to the petitioner, these two directors acted to the detriment of the company. The directors did not enjoy the confidence of majority of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dingly the application dated April 25, 2011, was made. Now, from the material available on record, it is contended that there is necessity in law and fact to restore the name of company in the register maintained by the Registrar of Companies, for according to learned counsel if the company is not restored and the entity is not revived, the properties of the company either will be lost or taken over by persons who cannot and could not claim title from the company. Further, the shareholders of the company did not get money from the assets of the company. Therefore, restoration of name in register is in the interest of one and all. He further contends that even if third parties have any claim enforceable in law against the company, unless and until the entity is restored, they cannot proceed against a non-existing company. He places reliance on Conti v. Uebersee Bank AG [2000] BCC 172 and M.A. Panjwani v. Registrar of Companies: [2014] 206 DLT 17 : [2015] 192 Comp Cas 380 (Delhi). 6. I have perused the material available on record and noted the submissions of Mr. Ravi and in the considered view of this court, the following point arises for consideration : Whether the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zette; and on the publication in the Official Gazette of this notice, the company shall stand dissolved : Provided that- (a) the liability, if any, of every director, manager or other officer who was exercising any power of management, and of every member of the company, shall continue and may be enforced as if the company had not been dissolved; and (b) nothing in this sub-section shall affect the power of the Tribunal to wind up a company the name of which has been struck off the register. (6) If a company, or any member or creditor thereof, feels aggrieved by the company having been struck off the register, the Tribunal, on an application made by the company, member or creditor before the expiry of twenty years from the publication in the Official Gazette of the notice aforesaid, may, if satisfied that the company was, at the time of the striking off, carrying on business or in operation or otherwise that it is just that the company be restored to the register, order the name of the company to be restored to the register; and the Tribunal may, by the order, give such directions and make such provisions as seem just for placing the company and all other persons in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to above. The instant prayer is made under sub-section (6) of section 560 of the Act. Under sub-section (6), a company or any member or creditor thereof feels aggrieved by the company having been struck off :he register, on an application made by the company, member or creditor before the expiry of 20 years from the publication of the Official Gazette of the notice aforesaid, the court may, if satisfied that at the time of the striking off the name of company, the company was carrying on business or in operation or otherwise that it is just that the company be restored to the register, order the name of the company to be restored to the register and can issue such further directions in the context of restoration of name by the Registrar. Stated succinctly, sub-section (6) of section 560 enables three classes of persons, namely (1) the company, (2) member or (3) creditor to apply for striking off cancellation within twenty years and seek restoration of the name of company in the register of Registrar of Companies, subject to the said company, member or creditor satisfying the court that at the time of striking off the name, the company was carrying on business or in operation or o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e new event, 'having been struck off' and no longer being in existence (New Timbiqui Gold Mines Ltd., In re [1961] 31 Comp Cas 680 (Ch D) : [1961] 1 Ch D 319 and AGA Estate Agencies Ltd. (1986), In re [2000] BCC 99, 257 distinguished). 4. The petitioner could thus be a person aggrieved and because of the uncertainties in the facts the case should be sent to proof before answer. 11. In M.A. Panjwani v. Registrar of Companies [2014] 206 DLT 17 : [2015] 192 Comp Cas 380 (Delhi) considered the scope of section 560(6) and the meaning of words otherwise just held as follows (pages 386, 388 and 389 of 192 Comp Cas) : Under sub-section (6) of section 560 of the Companies Act, 1956, the company court has the power to order restoration of the company's name to the register of companies on the application made by the company itself or its member or creditor. Such an application can be made at any time before the expiry of 20 years from the publication of the notice for striking off the name published in the Official Gazette. There are only two circumstances in which the company court can exercise the power. The first is when it is satisfied that the company was, at t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peripheral field, hi understanding its scope, one must take into account all the facts and circumstances of the case and then decide what would be just and equitable. In M.A. Rahim v. Sayari Bai,: AIR 1973 Mad 83, it was held by a Division Bench of the Madras High Court that the word 'just' connotes reasonableness and something conforming to rectitude and justice, something equitable and fair. In Siddhant Garg v. Registrar of Companies: [2012] 171 Comp Cas 326 (Delhi) it was held by this court (Manmohan J.) that the word 'just' would mean that it is fair and prudent from a commercial point of view to restore the company and that the court has to examine the concept of 'justness' not exclusively from the perspective of a creditor or a member or a debtor, but from the perspective of society as a whole. The special facts of the present case attract this principle. The respondent has received monies from the petitioner. He was entrusted with the job of finding a house for the petitioner in Delhi. The averments in the petition prima facie indicate that the property 'Jodhpur Gardens' was purchased not in the name of the petitioner but in the name of the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th a view to enabling company to claim its assets or administer for the benefit of shareholders prays for restoration of the name in the register. In the considered view of this court, with the striking off the name of the company, the legal and corporate entity enjoyed by the company under the Act is completely denuded. Therefore, for all purposes, it became dead or non-existing in the eye of law. Therefore, either to claim the assets of company or answer the claims of third parties against the company, the restoration of company in the register of companies is otherwise just. Therefore, this court holds that the petitioner, though was not aggrieved on the day when the application was made, but with the acquisition of subsequent knowledge or information about the assets of the company, the petitioner being the ex-chairman/shareholder of the company is a person aggrieved against the striking off the name of company from the register and can apply for cancelling the striking off and restoring the name in the register. Hence, a case is made out that otherwise it is just and proper to restore the name of the company in register. 14. For the above reasons, the company petition is or ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
