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TMI Blog2018 (5) TMI 1884X X X X Extracts X X X X X X X X Extracts X X X X ..... ial Act, 98 Lakshmirattan and Atherton West Cotton Mills (Taking Over of Management) Act, 1976 was passed pursuant to which management of the petitioner-company was taken over by the Government of India in terms of section 3(4) aforesaid Act and thus exclu sive control vested with the Government of India through National Textile Corporation, so the petitioner in the present matter has no control over the company. It appears that the petitioner has filed this petition for restoration of company to pursue its matter in the hon'ble High Court. The grounds available under section 560(6) for restoring a company name is not fulfilled in this matter as company is not carrying on business or in operation. It is not just and proper to restore the company, as petitioner is seeking restoration to protect its interest so that he can pursue the matter before the hon'ble High Court. No interest of member, creditors or public is involved in it. - C. P. No. 23 of 2012 - - - Dated:- 30-5-2018 - V. P. SINGH Judicial Member and MS. SAROJ RAJWARE Technical Member Adesh Tondon , Practising Company Secretary for the petitioner. Krishna Dev Vyas , CGSC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... name of the company was struck off under section 560 of the Companies Act, 1956 and the application under section 560(6) was filed before the hon'ble Allahabad High Court in the jurisdiction under the Companies Act. 2.8 The hon'ble Allahabad High Court vide its order dated December 21, 2016 transferred the present petition to this Bench of National company Law Tribunal in view of clause (c) of section 434(1) of the Companies Act, 2013 and the Companies (Transfer of Pending Proceedings) Rules, 2016 and the Companies (Removal of Difficulties) Fourth Order, 2016 with effect from December 15, 2016. 3. Contention of practising company secretary representing the petitioner- company are stated as under : 3.1 The Textile Undertaking (Nationalization) Act, 1995 contemplates the word undertaking. The textile undertaking has been defined in section 2(1)(m) of Textile Undertaking (Nationalization) Act, 1995. The definition of the undertaking means the undertaking defines in column 2 of first schedule. Therefore, only the properties which were belonging to textile undertaking ought to have been vested in the NTC (Government of India) whereas the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich among other things contain as under : The Tribunal on an application made by applicant if satisfied that the company was at the time of the name being struck off was carrying on any business or in operation or otherwise it is just that the name of the company be restored to the register of the companies. From the above the words or otherwise it is just that the name of the company to be restored to the register of the companies . Thus it is prayed that Tribunal has very wide power to restore the name of the company on the grounds which is or otherwise it is just . In present case, the valuable right is pending before the hon'ble Allahabad High Court in writ jurisdiction. 3.5 Further, he relied upon a decision of hon'ble Delhi High Court in Company Appeal No. 25 of 2012 in the matter of ZTE Corporation v. Sidhharth Garg of the Division Bench which has also been followed by this Bench in the matter of Snap Pack P. Ltd. v. Registrar of Companies . Para graph 10 of the judgment of the hon'ble Delhi High Court is stated as under : 10 . The judicial precedents on this subject clearly are in favour of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. For the year 1998-1999 Page No. 25 2. For the year 1999-2000 Page No. 29 3. For the year 2000-2001 Page No. 33 4. For the year 2001-2002 Page No. 35 5. For the year 2002-2003 Page No. 37 6. For the year 2003-2004 Page No. 40 7. For the year 2004-2005 Page No. 42 8. For the year 2005-2006 Page No. 44 Thus returns were filed up to 2006 4. Contention of CGSC representing the Registrar of Companies are stated as under : 4.1 A perusal of section 560 of the Act would show that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke defunct company off register. - (1) Where the Registrar has reasonable cause to believe that a company is not carrying on business or in operation, he shall send to the company by post a letter inquiring whether the company is carrying on business or in operation. (2) If the Registrar does not within one month of sending the letter receive any answer thereto, he shall, within fourteen days after the expiry of the month, send to the company by post a registered letter referring to the first letter, and stating that no answer thereto has been received and that, if an answer is not received to the second letter within one month from the date thereof a notice will be published in the Official Gazette with a view to striking the name of the com pany off the register. (3) If the Registrar either receives an answer from the company to the effect that it is not carrying on business or in operation or does not within one month after 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 notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... company, carrying on business or was in operation, (ii) it is otherwise just that the com pany be restored. The first preposition can be answered by report of the Registrar of Companies. In the present case report of the Registrar of Companies is against the company. In paragraph 8 of the counter affidavit, it is stated that the petitioner company has not filed statutory balance-sheet and annual returns for the last ten years. Further in paragraph 9 of the affidavit, it is stated that the petitioner-company has admitted that they have failed to file statutory balance-sheet and annual return for the last ten years which led to the affirmation that respondent No. 2 had reasonable cause to believe that the petitioner-company was not carrying business operation. From the fact of the case itself, it is obvious that company is not doing any business at the time of striking off its name. In the year 1995 assets of textile undertaking were nationalised by the Textile Undertaking (Nationalization) Act, 1995. The entire textile undertaking was vested with the Government of India. Special Act, 98 Lakshmirattan and Atherton West Cotton Mills (Taking Over of Mana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anpat Rao Kadam Marg, Bombay. 11. Shree Madhusudan Mills, Pandurang Budhkar Marg, Bombay. 12. Shree Sitaram Mills, N. M. Joshi Marg, Bombay. 13. Tata Mills, Dr. Ambedkar Road, Dadar, Bombay. 14. Laxmirattan Cotton Mills, Kalpi Road Kanpur. 15. Ather ton West Cotton Mills, Anwar Ganj, Kanpur . . . XXXXXXXXXXXXXXXX From the conjoint reading of section 2(m) and Schedule first, it is very clear that Laxmirattan Cotton Mills, Kalpi Road Kanpur, Is coming under the definition of undertaking as defined in the Textile Undertakings (Nationalization) Act, 1995. Section 3 of the Laxmirattan and Atherton West Cotton Mills (Taking Over of Management) Act, 1976 deals with management of undertakings of two companies to vest in the Central Government. Section 3 of the Laxmirattan and Aterton West Cotton Mills (Taking Over of Management) Act, is stated as under : 3. Management of the undertakings of two companies to vest in the Central Government.-(1) On and from the appointed day, the management of the undertaking of the two companies shall vest in the Central Government. (2) The undertakings of each of the two companies shall b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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