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2017 (5) TMI 995 - HC - Insolvency and BankruptcyApplication for restoration of the company in the register - Jurisdiction of this Court to entertain an application for recalling the order passed under Section 560(6) of the Companies Act - Held that:- Admittedly, the original proceeding originating from a Company Petition filed under Section 560 of the Act is neither reserved for orders for allowing nor otherwise pending as on this date and therefore the application for recalling the order cannot come within the purview of Rule 3 of the said Rules. The power of recalling the order is a vested power upon the Company Court and emanates from Rule 9 of the Company Court Rules. it originates and / or arise from the original proceeding and there was no intention of the legislature to include such applications within the periphery of Rule 3 thereof. This Court therefore does not find any substance in the preliminary objection raised by the Director of the company and is therefore answered in negative. Whether the order was obtained by suppressing the material facts and by committing fraud on the Court? - Held that:- The application for restoration of the company in the register contains the simplicitor statements that the company was active but because of the person responsible for filing the annual return and the balance sheet, the same could not be filed. In the instant petition, the present applicants disclosed that the company applied for voluntary winding up under EES (Easy Exit Scheme)-2011 before the Registrar of Companies and wanted the company to be wound up under Section 484 of the Companies Act, 1956 by passing a special resolution. A declaration duly verified by affidavit was also filed in compliance with Section 488 of the said Act declaring that the company had been inoperative since past three years. The said declaration contains the categorical statement that there is no litigation pending against or involving the company when in fact the Complaint Case being No. 5939 of 2003 was pending before the learned Metropolitan Magistrate at Kolkata involving the said company. It is further stated that the said application was filed under the said scheme disclosing that there are two Directors namely Subhas Dutta and Partha Dutta when it would appear that they were not the Directors. The aforesaid facts having been specifically denied in the opposition. It is no longer res-integra that the Court can recall its order if obtained by suppression of the material fact or by practicing fraud. The Company Petition was silent on the above aspect and there is no hesitation to say that there was a conscious and deliberate suppression of those facts
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