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TMI Blog2024 (10) TMI 402X X X X Extracts X X X X X X X X Extracts X X X X ..... r realisation of the dues of the said company against its debtors, which have either crystalised or remain uncrystallised, arising from any liability or obligation of its debtors to the company, but even the creditors can pursue legal remedies against the said company for the payment and discharge of its liabilities or obligations arising from any contract or statutory implications. This Court finds that the mere striking-off of the name of the respondent-company from the register by the Registrar of Companies does not automatically invalidate or renders flawed the civil suit filed by the respondent/plaintiff. In the instant matter, apparently the cause of action existed on the day the suit was instituted. Accordingly, the respondent/plaintiff company can pursue its remedies in law even after its name being struck off from the register by the Registrar of Companies. The present civil revision petition is dismissed. - HON'BLE MR. JUSTICE DHARMESH SHARMA For the Petitioners Through: Mr. Aditya N Prasad Mr. Pratyush Jain, Advs. For the Respondent Through: Mr. Amit Trikha, Adv. JUDGMENT 1. The petitioners, who are defendants in the suit instituted by the respondent/plaintiff have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the register of Companies in terms of Section 248 (5) CPC of The Companies Act 2013. However, he submits that continuance of the present suit is saved by the provisions of Section 250 r /w section 248 (6) (7) CPC of The Companies Act 2013. Proviso 2 section 248 (6) of The Companies Act categorically states that notwithstanding striking of the name of a company , the assets of the company shall be made available for the payment or discharge of its liabilities even after the date of the order removing the name of the company from the register of companies. Further, Section 250 The Companies Act categorically creates the exception for the purposes of realizing the amount due to the company. CS Dj 11971/16 M/S BHAN TEXTILES PVT LTD Vs. M/S AB CREATIONS In view of the same, since present suit was filed way back in 2016, the continuance of the suit is not affected by striking of the name of the company from the register of company in view of the provisions of section 250 r/w Proviso to the section 248 (6) of The Companies Act 2013. Therefore, application under Order 7 Rule 11 CPC is accordingly dismissed with cost of Rs. 10,000/- to be paid by the defendant to the plaintiff. Last final ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent to display advertisements at the Mall, in a theatre and upon ticket jackets. The contract was to commence on 22.5.2008 and was to conclude on 31.7.2009. This term was extended by a formal amendment till September, 2009. The agreement also provided that in the event respondent fail to make payment for a period of one month, during the term of the agreement, the petitioner would be at liberty to terminate the agreement with notice of seven days. In that event, respondent was obliged to make good losses and damages which may be suffered by the petitioner. The respondent was liable to pay entire royalty/minimum guaranteed amount mentioned in the agreement with interest @ 18% per annum on alleged breach committed by the respondent. The petitioner terminated the contract and demanded the entire amount of royalty/minimum guaranteed amount. On the respondents failure to pay, winding up petition was filed. The Court dismissed the said petition holding that it was not maintainable upon a claim for damages which could not be treated as debt. It was held that damages become payable only when they are crystallized upon adjudication. Until and unless an adjudication takes place wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le him to execute the award and it was observed as under:- 4. H.N. Explosives Pvt. Ltd. was incorporated under the Companies Act, 1956 on 17th April, 1989 as a private limited company with the Registrar of Companies, NCT of Delhi and Haryana. 5. The petitioner herein is Indian Explosives Ltd, and is stated to be a creditor of the erstwhile company H.N. Explosives Pvt. Ltd. 6. The Registrar of Companies, i.e the respondent herein, struck the name of H.N. Explosives Pvt. Ltd. off the Register on the ground of non-filing of returns. The requisite notification was duly published in the Official Gazette on 23rd June, 2007 at S. No. 6403. 7. It is the petitioner's case that it had acquired the business in explosives of ICI India Ltd. in 1999. Earlier, on 29 May, 1991, ICI India Ltd. had entered into an agreement with H.N. Explosives Pvt. Ltd., whereby the erstwhile company was appointed the distribution/consignment agent of ICI India Ltd. By this agreement, H.N. Explosives Pvt. Ltd was given charge of keeping the goods of ICI India Ltd. in its godown and, for that, it was entitled to a certain commission. On 17th May, 1999, the petitioner company, i.e. Indian Explosives Ltd., was inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct recovery against the erstwhile company H.N. Explosives Pvt. Ltd. 10. In Umedbhai Jhaverbhai v. Moreshwar Keshav, AIR 1954 MB 146, the Madhya Pradesh High Court, construing the corresponding provision S. 247 (6) the Companies Act, 1913, restored the name of a company that had been struck off from the Register, as a suit for recovery which had been instituted before the company's name had been struck off, was still pending. It held, inter alia, in paragraph 8 thereof that; when a suit is actually pending against a company and is being contested by it at the time of the removal of its name from the register, it is proper to direct restoration of the name of the Company particularly when the Directors were aware of the fact of the contested litigation and were actually taking part in it. To my mind, the above ratio would be equally applicable to the instant case of a company which was in existence when the arbitral award was rendered. 13. The name of the company H.N. Explosives Pvt. Ltd., its directors and members stands restored to the Register maintained by the Registrar of Companies, as if the name of the said company had not been struck off, in accordance with S. 560(6) of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssary, obtain necessary undertakings from the managing director, director or other persons in charge of the management of the company: Provided that notwithstanding the undertakings referred to in this sub-section, the assets of the company shall be made available for the payment or discharge of all its liabilities and obligations even after the date of the order removing the name of the company from the register of companies. (7) 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 dissolved under sub-section (5), shall continue and may be enforced as if the company had not been dissolved. (8) Nothing in this section shall affect the power of the Tribunal to wind up a company the name of which has been struck off from the register of companies. 9. Section 250 of the Act further provides as under:- 250. Effect of company notified as dissolved. Where a company stands dissolved under section 248, it shall on and from the date mentioned in the notice under sub-section (5) of that section cease to operate as a company and the Certificate of Incorporation issued to it shall be deemed to have bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er sub-section (5), shall continue and may be enforced as if the company had not been dissolved. 14. With respect to the liability of a struck off company, it would also be instructive to refer to repealed Section 560 of the Companies Act, 1956, which corresponds to Section 248 of the Companies Act, 2013. The Sub-Section (5) of Section 560 reads as under: - (5) At the expiry of the time mentioned in the notice referred to in sub-section (3) or (4), the Registrar may, unless cause to the contrary is previously shown by the company, strike its name off the register, and shall publish notice thereof in the Official Gazette; 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, 1 [***] 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 Court to wind up a company the name of which has been struck off the register. 15. Clause (a) of the Proviso to Sub-Section (5) of Section 560 came up for c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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