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2014 (2) TMI 64 - HC - Companies LawPetition for restoring the name of company for continuing suit against the company - earlier the petition was dismissed by the trial court on the ground that name of the company was stuck down and no suit can continue against non existing company - who can apply for restoration of name of the company - whether the petitioner is Member or Creditor of the erstwhile company - Held that:- The transfer of shares from the petitioner to Quli having been held by this Court to be collusive and the orders under which it was done having been declared to be a nullity, the petitioner never ceased to be a member of the company. Even if the petitioner cannot be considered as a “member” of the company, he is certainly a “creditor” who can file the petition. Company court has the power to order restoration of the company’s name to the register of companies on the application made by the company itself or its member or 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 ROC that the petitioner is neither a member nor a creditor of the company. 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 taken 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, it 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 - Therefore, there is every reason to hold that it would be “just” to restore the name of the company to the register of companies. The Registrar of Companies is directed to do so - Decided in favour of Petitioner.
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