2018 (10) TMI 1739 - MADRAS HIGH COURT

Restoration of name of petitioner/ company in the Register of Registrar of Companies maintained by them - direction to the petitioner company to file the Audited Financial Statements and Annual Return for the financial year 2009-10 on wards with the respondent - Section 248 of the Companies (Removal of names) Rules, 2016 - HELD THAT:- Perusal of the files, produced does not disclose any specific order passed under Section 248 of the Companies Act, 2015, whereas we find only the publication under Sub Section 5 of Section 248 of the Companies, Act, 2015 - From the facts and materials, it could be seen that the petitioner has not filed any appeal, against striking off or against publication of the Gazette notification, but the petitioner company has filed an application under Section 252(3) of the Companies Act, 2013.

True that there is an alternative remedy under the NCLT Act, 2013, to prefer an appeal to the Tribunal. But when the error is apparent on the face of record, we are of the view that exercise of power under 227 of the Constitution of India is not ousted. Order has been made on the submission of the petitioner that company has been strike off - Tribunal cannot be found fault with, in placing on record the submission. But the fact remains that, an application under Section 252(3) of the Companies Act, 2013, can be entertained only in a case, where there is an order by which the company is strike off.

Legislation if any enacted, providing for an alternative remedy, cannot take away the Constitutional Powers of the High Courts, under Article 226 or 227 of the Constitution of India. High court in exercise of jurisdiction under Article 226 or 227 of the Constitution of India, may not entertain a writ petition, on the ground of availability of an alternative remedy, but the rule cannot have universal application. It is well settled that despite existence of an alternative remedy, still, High Court in exercise of its jurisdiction, entertain a writ petition and pass suitable orders, if it is found that the authority had not acted in accordance with law.

In the case on hand, on the premise that there is an order, striking off the company from the register of companies, the petitioner has filed an application under Section 252(3) of the Companies Act, 2013, and orders have been passed, which is impugned in this revision petition - But this Court on perusal of files, has found that there is no order under Section 246(6) of the Act, at all. By inadvertence the petitioner company, was of the view that, there was an order under Section 248(6), of the Companies Act, 2013, and proceeded further whether this Court is denuded of the power under Article 227 of the Constitution of India, to ignore the fundamental error committed by the Registrar of Companies, and direct the petitioner to avail the alternate remedy under Section 252(3) of the Companies Act, 2013, which admittedly, not availed by the petitioner, on the premise that there was an order under Section 248(6) of the Companies Act, 2015.

Thus, when there is no order under Section 248(6) of the Companies Act, 2015, passed by the Registrar of Companies, the consequential publication effected under Section 248(5), is not valid.

Therefore, it is for the petitioner to take appropriate course - petition disposed off.