TMI Blog2012 (3) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... h. Since today the respondent No. 2 company has a Foreign Award of more than a million dollars in its favour, it would be just, fair and prudent to restore the company to its original status. The ex-management of the respondent No. 2 company are directed to file all statutory returns along with prescribed fees in compliance with all statutory requirements. In the event of their failure to do so, the petitioners are directed to fulfil the aforesaid obligation. - CO. petition NO. 200 OF 2011, CO. application NO. 2103 OF 2011 - - - Dated:- 8-2-2012 - MANMOHAN, J. Arun Bhardwaj and Vishal Malhotra for the Petitioner. K.S. Pradhan, Amit Sibal, Bishwajit Dubey, Tamal Mandal and Abhay Chattopadhya for the Respondent. JUDGMENT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Foreign Award. 5. Mr. Arun Bhardwaj, learned senior counsel for petitioners submits that the petitioners who are creditors of the respondent No. 2 company are aggrieved by the malafide action of the former management of the respondent No. 2 company by virtue of which, they have got respondent No. 2 struck off from the Register of Companies under the Simplified Exit Scheme 2003. In this connection Mr. Arun Bhardwaj, learned senior counsel for petitioners has drawn my attention to paragraphs 2, 3 and 6 of the present petition. Mr. Bhardwaj prays that the respondent No. 2 company be restored to the register maintained by the respondent No. 1 and the respondent No. 2 company be placed in the same position as if its name had never been st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the time of making the said application, every Director of the company had submitted an indemnity bond making them liable for any dues and claims of the creditors. 12. Having heard the parties at length, this Court is of the view that it is essential to first outline the scope and ambit of Sub-section 6 of Section 560 of the Act. The said Sub-section reads as under:- "560. Power of Registrar to strike defunct company off register.- ** ** ** (6) If a company, or any member or creditor thereof, feels aggrieved by the company having been struck off the register, the [Tribunal], on an application made by the company, member or creditor before the expiry of twenty years from the publication in the Offici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n only arises after the court has been satisfied that (a) the company was at the time of striking off carrying on business or in operation, or (b) otherwise that it is just that the company be restored. The first of these amounts to the court being satisfied that the registrar's reasonable beliefs which were the basis for the original order striking the company off, were not in fact correct. The second means that, prima facie , the court has been persuaded that it is just to restore. In either case it seems to me that, absent special circumstances, restoration should follow. Exercising the discretion against restoration should be the exception, not the rule. " (Page 476) Once the court has acquired jurisdiction on the basis that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not only would the company revive, but also society would gain as a defunct company would stand restored as a healthy company. 18. In fact, this Court in Kesinga Paper Mills (P.) Ltd. v. Ministry of Corporate Affairs Through Registrar of Companies [2010] 101 SCL 321 (Delhi) has held as under:- "10. Further, when a litigation is pending by or against a company, it is only proper that its name be restored to the Register to enable the matter to be carried to its conclusion, as has been held by this Court in M/s. Indian Explosives Ltd. v. Registrar of Companies, CP. No. 185/2008, decided on 21st April, 2010. " [Emphasis supplied] 19. Moreover, keeping in view the averments in the petition, it cannot be said that petitioners h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioners and intervener. In any event, the offer was outrightly rejected by the learned senior counsel for the petitioners. 23. As a matter of law, it cannot be said that where the company's name has been struck off on an application filed under Simplified Exit Scheme, the company cannot be restored. In fact, the Madhya Pradesh High Court in VI Brij Fiscal Services (P.) Ltd. v. Registrar of Companies [2010] 155 Comp. Cas. 157/100 SCL 370 (MP.) has restored a company which had been struck off under the Simplified Exit Scheme. 24. As far as the plea of res judicata is concerned, this Court finds that Hon'ble Mr. Justice Sudershan Kumar Misra while rejecting the application under Section 560(6) of the Act had clearly observed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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