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TMI Blog2019 (5) TMI 1495X X X X Extracts X X X X X X X X Extracts X X X X ..... on as was filed initially in the High Court, is available at Annexure A-10 and it shows that the Appellant referred to its Memorandum of Association, which inter alia showed the business of the Company as not merely spinning, weaving, dying, etc. including the manufacture, purchase and sale of materials of cotton, etc. but also the object of purchase, acquire, construct, maintain or alter any buildings. The Petition claimed that the Company prepared and audited accounts every year since incorporation which was in 1934. The Petition referred to existence of unfriendly relations between family members who were shareholders of the Company, because of which the business came to a halt and was not being carried on for last 10 years. The Petition showed that the ROC issued Notice dated 29.10.2007 under Section 560(1) to the Company; as there was no response, another Notice under Section 560(2) dated 18.12.2009 was issued enquiring if the Company was carrying on business and that in case of default, the Company would be struck off; and that the ROC then issued yet another Notice under Section 560(3) on 11.02.2010 and ultimately passed Order under Section 560(5) on 11th May, 2010 dissolvin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same. The Appellant claimed that the properties attached by the Income Tax Department included not merely the textile undertaking but other properties of the Company, which could not be handed over and the Affidavit enlisted the same as under:- "3. That the properties (including actionable claims) not pertaining to the textile undertaking which has been handed over to the NTC UP are as under: (1) A Building situated at 122/1, Sarojini Nagar, Kanpur about 47000 sq yrd. (2) Bungalow and godown situated at 199/502, 199/506 & 199/507, Darshan Purwa, Kanpur about 14700 sq yrd. (3) Bungalow situated at 16/19 (old) 16/58 (new), Civil Lines, Kanpur about 3520 sq yrd. (4) An open Plot situated at 15/68, Civil Lines, Kanpur about 3000 sq yrd. (5) Other actionable claims etc." 4. The Impugned Order shows that the matter was decided by the NCLT and by the Judgement dated 30.05.2018, the Tribunal referred to the Act of 1976 and concluded by referring to the provisions that the management of the Petitioner "Company" was taken over by the Government of India. It also concluded that there was no partial takeover of the ownership and proceeded to dismiss the Company Petition. 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble High Court of Delhi at New Delhi in CP 185/2008 dated 21.04.2010 in the matter of "Indian Explosives Ltd. Vs. Registrar of Companies" where the Petitioner had Arbitration Award in its favour against Company which had been struck off and it became impossible for the Petitioner to execute the Award and restoration was sought. The Hon'ble High Court referred to another matter decided by the High Court of Madhya Pradesh where it was observed that when suit is pending and is being contested, it is proper to direct restoration of the name of Company, if it is removed. 8. The learned Counsel for the Appellant has relied on the Judgement in the matter of "U.P. State Sugar Corporation Vs. Burwal Sugar Mills Co. Ltd. and Ors." reported as MANU/SC/0156/2004: 2004(2)SCALE646. That matter related to U.P. Sugar Undertakings (Acquisition) Act, 1971 where after considering the provisions of that Act, the Hon'ble Supreme Court in para - 14 observed as under:- "14. The intention of the Legislature is clear that the land and buildings which were connected with or were in use for the purposes of the factory would be covered by clause (vi) of section 2 (h). Admittedly, the registered office of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, which is said to be pending before High Court, an Order (Annexure - A-17) appears to have been passed as long back as on 03.07.2006, which reads as under:- "It is contended that the petitioner company in its entirety was not taken over under the Textile Undertakings (Nationalization), Act, 1995 and only one of its mill i.e. M/S Laxmirattan Cotton Mills, Kalpi Road, Kanpur was acquired. But the respondents have released the entire property of the petitioner Company from attachment in favour of M/S National Textiles Corporation Ltd. (respondent Nos.2 and 3) by the Impugned Order contained in Annexure No.8 and 9 to the writ petition. Heard Mr. Awasthi on behalf of respondent No.4 and 5. He is allowed four weeks' time to get instructions. Respondent No.1 is represented by Sri Vibhu Prakash Mishra and learned Standing Counsel appears for the Central Government. They are allowed three weeks' time to file counter affidavit. Rejoinder affidavit, if any, may be filed by the petitioner within two weeks thereafter. Issue notice to respondent Nos.2 and 3 returnable within a period of four weeks. Steps may be taken within a week. List this case after the expiry of the aforesaid per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces as directors, managers or any other managerial personnel of either of the two companies, immediately before the appointed day, shall be deemed to have vacated their offices as such on the appointed day." To read it in a simple way, (excluding the inclusive portion) the Sub-Section read that all persons in charge of the management shall be deemed to have vacated their offices as such on the appointed day. As the matter is pending in the High Court, we are looking at these provisions as to how they prima facie appear to us and we find ourselves in disagreement with NCLT that management of the "Company" was taken over. Our observations are for limited purpose of restoring name of Company. Naturally, Hon'ble High Court will take its own decision. 11. Looking to the disputes pending in the High Court, according to us, it would be appropriate to restore the name of the Company to the Register of Companies leaving all questions open for the Appellant and Respondents to dispute in the Writ Petition for final adjudication by the Hon'ble the High Court. Striking off of the name of the Company would create difficulties for the Appellant to pursue its remedies before the High Court and i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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