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TMI Blog2022 (11) TMI 649X X X X Extracts X X X X X X X X Extracts X X X X ..... defect enabling the Registrar to pass an order for withdrawal of the notice. On the contrary after waiting for long time finally on 28.11.2011 exercising power under sub Section (5) of Section 560 of the Companies Act, 1956 the Appellant/Companies name was struck off and the Company was directed to be dissolved. On going through the order dated 13.11.2014 it is difficult to decipher as to whether the Appellant in terms of provision contained in Section 252 (3) of the Companies Act, 2013 had given any indication that at the time of striking off the Company i.e. as on 28.11.2011 the Appellant/Company was carrying on any business or was in operation nor there was any otherwise situation to justify the restoration of name of the Company. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... got a checkered history. Accordingly, it is necessary to delineate certain facts. 3. The Appellant/Company was incorporated in the year 1984 under the provisions of Companies Act, 1956 with the Registrar of Companies (RoC), NCT Delhi and Haryana. However, subsequently on request made by the Company/Appellant by order dated 16.10.2001 the Appellant /Company was permitted to change of registered office from NCT Delhi to West Bengal and finally by order dated 16.01.2002 the RoC West Bengal issued certificate of Registration. 4. After being registered with the RoC West Bengal due to some reason under simplified Exit Scheme, 2005 the Appellant/Company requested for approval of RoC West Bengal for striking off the name of the Company and du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt Single Judge which is at running page 118 and 119. Let the affidavit of service and the statement showing calculation of fees and additional fees payable for e-filing of the pending statutory documents be taken on record. Perusing the said statement, it appears that a sum of Rs. 83,400/- would be due from the company now if the records and documents not filed earlier were to be furnished today. Subject to the company paying a sum of Rs. 90,000/- to the Registrar of Companies within a fortnight from date, the name of the company will be restored to the list of the active companies and the company and its officials will be given access to the relevant portal. Upon the money being tendered, the same will be deposited in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal i.e. A.P.O.T. No. 386 of 2015 was heard by a Division Bench of the Calcutta High Court. The Division Bench assigning detailed reason by Judgment dated 11.05.2016 dismissed the Appeal and approved the order passed in CA No. 423 of 2015. In substance the status of the Company again came to as an struck off company having no existence. 11. It is profitable to incorporate the operative portion of the Judgment of Hon ble Division Bench of Calcutta High Court comprising of Justice Ms. Indira Banerjee (as she then was) and Mr. Sahidullah Munshi dated 11.05.2016 as follows: In view of the assertion made by the erstwhile directors of the Company, including Viswanath Agarwal, in their affidavits and indemnity bonds in support of their p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e ground that the Petition for revival/restoration of the Company was not filed by competent person particularly shareholder etc. However, the application i.e. CP No. 74/KB/2018 was filed by one of the shareholder who was competent to trigger the Petition for restoration of the Company on Register of RoC under the provisions contained in Section 250 to 253 of the Companies Act, 2013. Ld. Counsel emphasized that in not entertaining the application filed before the NCLT vide CP No. 74 of 2018 which was having no bearing with earlier orders passed by either Single Bench or Division Bench of the Calcutta High Court, the NCLT has committed serious error. Accordingly, it was argued that the order impugned is liable to be set aside and NCLT can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ier under the simplified exit scheme, 2005 the Appellant/Company had prayed for approval of the RoC, West Bengal for striking off the name of the Company. In any event the name of the company was finally struck off on 28.11.2011 and thereafter there is no material on record to suggest that what was the reason for sitting tight over the matter for almost about more than three years. Only thereafter an application was filed by an Ex-Director of the Company for restoration/revival of the company. 18. We have perused the order whereby the Hon ble Single Bench of the Calcutta High Court allowed the application i.e. CP No. 936 of 2014 on payment of sum of Rs. 90,000/- to the Registrar of Companies. 19. This order was already recalled by ano ..... X X X X Extracts X X X X X X X X Extracts X X X X
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