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TMI Blog2019 (12) TMI 243X X X X Extracts X X X X X X X X Extracts X X X X ..... on cannot be treated a legally valid and just action on the part of ROC to strike off the name of the Company during Corporate Interim Resolution Process, which is reported to have pending litigation. The impugned order dated 06.08.2018 to strike off the name of the company, so far as it relates to the present company is set aside - the present Company Appeal deserves to be allowed and the name of the company, i.e. M/S. J. R. Diamonds Pvt. Ltd. to be restored in the statutory register of Companies being maintained by the Respondent, ROC, Gujarat for above mentioned limited purpose - the present appeal is conditionally allowed. - CO. Appeal No. 53/252(3)/NCLT/AHM/2019 - - - Dated:- 6-11-2019 - Prasanta Kumar Mohanty, Member (Technical), Harihar Prakash Chaturvedi Member (Judicial) Nipun Singhavi, Vishal J. Dave and Ms. Pragati Tiwari, Advs. for the Applicant. ORDER Mr. Harihar Prakash Chaturvedi, 1. The present Company Appeal is filed seeking for restoration of the name of the company i.e. M/S. J. R. Diamonds Pvt. Ltd. in the statutory register of companies being maintained by the Registrar of Companies, Gujarat [The ROC' f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion Professional. Later on, the Appellant was further confirmed by the COC to be the Resolution Professional. Thereafter, this Tribunal vide its order dated 01.10.2018 further appointed him as the Liquidator of the Company. The Appellant has stated that at the time of initiation of Corporate Interim Resolution Process ( CIRP') in respect of the company, it was having Active status. 6. The Appellant, after his appointment as a Liquidator duly informed the Respondent (i.e. ROC) vide his letter dated 20.12.2018 about the order of this Tribunal for the Liquidation of the company, however, it is submitted that no reply from the Respondent was received. 7. However, during the liquidation process of M/S. J. R. Diamonds Pvt. Ltd, the Appellant, being a Liquidator came to know this fact from the web-portal of the Ministry of Corporate Affairs that the name of the company has been struck off. 8. It is submitted that M/S. J. R. Diamonds Pvt. Ltd. at the time of its deregistration was having assets over ₹ 81,26,35,384/- as on which includes company's investment in preference shares of M/s Peacock Jewellery Ltd. amounting to ₹ 4,50,00,000/-. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in its representation has further submitted that this Tribunal may pass appropriate order for restoration of the name of the company but subject to fulfilment of certain conditions that may be imposed by this Court as described below: 1) The company Witt file the overdue statutory returns viz. Financial Statements and Annual Returns for the years which have not been filed and also other event based documents if any, with fees and additional fees as required under the Companies Act, 2013. 2) The publication of notice in two leading newspapers circulating in the district and official Gazette of Government of India, in regard to the restoration of the name of the company on the register maintained in the office of the Respondent as per the draft approved by the Respondent, at the cost of the petitioner. 3) The petitioner Witt ensure that the Company wilt not make any default in filing of statutory returns in future as required under the Companies Act, 2013. 4) The Hon ble Tribunal may please be direct the petitioners to pay cost as may deemed fit and proper to the Registrar of Companies for restoring the name of the company under Section 252(3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n thereof feels aggrieved by the company having its name struck off from the register of companies, the Tribunal on an application made by the company, member, creditor or workman before the expiry of twenty years from the publication in the official Gazette of the notice under sub- section(5) of section 248 may, if satisfied that the company was at the time of its name being struck off, carrying on business or in operation or otherwise it is just that the name of the company be restored to the register of companies and the Tribunal may, by the order, give such other directions and make such provisions as deemed just for placing the company and all other persons in the same position as nearly as may be as if the nameof the company had not been struck off from the register of companies. 17. As per record the name of the company, M/S, J. R. Diamonds Pvt. Ltd., was struck off on 06.08.2018 from the statutory register of companies which followed by Gazette notification published in this respect, While, this Court, vide its order dated 13.02.2018 has already admitted the I.B. Petition and the C.I.R.P, under the provision of the I.B. Code was commenced on with effect from 13.02 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the time of the striking off of its name from the register, carrying on business or was in operation. The second circumstance is when it appears to the company court that it is 'otherwise just' that the name of the company be restored to the register. Obviously the petitioner is not the company itself and, therefore, he has to be either a member or creditor. It was submitted on behalf of the Registrar of Companies that the petitioner is neither a member nor a creditor of the company... Quite apart from the above position, the sub-section recognises that if the court is of opinion that it is otherwise just' that the company be restored to the register, restoration can be ordered. The argument addressed on behalf of the Registrar of Companies to the effect that the word 'just' has to be understood in the background of the specific langu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iple. 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 company. The shares held by the petitioner in the company were also take away from him without his knowledge or consent. The settlement entered into between Quli and Singhania by which the shares were transferred to Quli was held by this court to be collusive. These are disputes which are pending in the trial court. The company is a defendant in the trial court. If its name is not restored, if would cause injustice to the petitioner and also cause prejudice to the trial as a whole, The message sent to the society as a whole, if the name of the company is not restored to the register, would be quite disturbing. The petitioner has to be protected in the litigation pending before the trial court, Ag observed by the Indore Bench of the Madhya Bharat High Court in Bhogilal Chimanlal v. Registrar of Joint Stock Companies [1954] 24 Comp Cas 279 (MB) : AIR 1954 MB 70, the effect of the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r or further steps as are required under the Act to formalise the restoration of company. The company petition is ordered as indicated above. 20. By perusal of the material available on record it is evident that the main reason shown for striking off the name of the Company, i.e. M/S. J. R. Diamonds Pvt. Ltd. was that the deregistered company had failed in filing its statutory returns (e.g. Balance Sheets, Annual Returns) before the ROC. However, when the order impugned for striking off the name of the company was passed, the company was under the C.I.R.P. and thereafter gone into liquidation process by an order dated 01.10.2018 of the NCLT passed under Section 33 of the I.B. Code. Hence, the liquidator took over the charge of the assets of the Corporate-Debtor-Company (now under deregistration). Hence such impugned action cannot be treated a legally valid and just action on the part of ROC to strike off the name of the Company during Corporate Interim Resolution Process, which is reported to have pending litigation. All such action also is not in conformity with the provisions of Section 14 of the I.B. Code by declaring moratorium of the company and making certain prohi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notwithstanding anything inconsistent therewith contained in any other taw for the time being in force or any instrument having effect by virtue of any such law. Hence, on such ground also, the impugned order dated 06.08.2018 to strike off the name of the company, so far as it relates to the present company is set aside. 22. Having considered the above stated aspects of the present appeal, we feel it just and equitable that the name of company needs to be restored in view of above stated legal position and name of the company should not been struck off, if there is some pending litigation by or against the Company. 23. Hence, the present Company Appeal deserves to be allowed and the name of the company, i.e. M/S. J. R. Diamonds Pvt. Ltd. to be restored in the statutory register of Companies being maintained by the Respondent, ROC, Gujarat for above mentioned limited purpose. 24. With the aforesaid observation and direction, the present appeal is conditionally allowed. In the result, the Registrar of Companies, Gujarat is hereby directed to restore the name of the Company in its statutory register of Companies but subject to compliance of fol ..... X X X X Extracts X X X X X X X X Extracts X X X X
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