9911796707
TMI Blog2013 (5) TMI 187X X X X Extracts X X X X X X X X Extracts X X X X ..... The appellant before this Court is M/s ZTE Corporation (a company based in China). The appellant and the company had entered into a consultancy agreement dated 01.01.2003; disputes arose between the parties which disputes were referred to arbitration in Singapore. Certain interim directions were passed in those arbitral proceedings. The company obtained a partial Award and its favour on 09.11.2009; final Award was passed on 23.7.2010 which, we have been informed, is of one million dollars exclusive of interest. These Awards had been passed in favour of the company and against the appellant. Execution petition No. 334/2010 was filed by the company seeking execution of both the partial Award and the final Award. Objections were filed by the appellant in this execution petition; primary objection taken by the appellant was that the company was non-existent on the date of the passing of the Award; as such the Award is a nullity. The company having been struck off from the Register of the ROC on 29.12.2006 which fact came to the light and to the knowledge of the appellant much later i.e. sometime in January, 2007. 4. Record further shows that C.P. No. 200/2011 was filed on 20.4.2011 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn about the striking off of the name of the company unless it was informed to them by company itself and the very fact that the company chose not to oppose this petition which was based on a claim/credit of the year 2000 when this petition was filed in the year 2011, the claim of the so-called petitioners/creditors would have been barred by time but the company chose not to oppose this petition. This itself reflects upon the mala fides and the collusive approach inter se the parties. 6. On the preliminary submission of locus, the learned senior counsel for the appellant has relied upon Jayham Ltd., In re [1996] B.C.C. 224 a judgment of the Chancery Division to support his submission that the provisions of Section 653 of the English Companies Act, 1985 are parameteria Section 560(6) of the Companies Act, 1956 and apart from the company, member or a creditor in the facts of a given case even a third party may be permitted to intervene. Submission being that in that case S who was a surety for Jayham's obligations, was permitted to be joined in the restoration application even though he neither fell in the category of a "company", "member" or "creditor". 7. Impugned order shows tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Official Gazette of the notice aforesaid, may, if satisfied that the company was, at the time of the striking off, carrying on business or in operation or otherwise that it is just that the company be restored to the register, order the name of the company to be restored to the register; and the [Tribunal] may, by the order, give such directions and make such provisions as seem just for placing the company and all other persons in the same position as nearly as may be as if the name of the company had not been struck off." 9. Before exercising discretion under this section, the Court must be (i) satisfied that the company was, at the time of striking of the company, carrying on business or was in operation; (ii) it is otherwise just that the company be restored. The first of this proposition can be answered by a report of the ROC which in this case was positive and this report of the ROC had in fact been considered while passing an order for the restoration of the company. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich is an undisputed document and a part of the record of the ROC. The elaborate submission of the learned senior counsel for the appellant that the petitioners are in fact nothing but stooges of the company thus does not hold water. They had prima facie established themselves as creditors of the company. The merits of their claim were not being adjudicated upon and was also not necessary to answer the prayers in the petition under Section 560(6) of the Act. 14. The last submission urged by the learned senior counsel for the petitioner was based on the principle of res judicata. To support this submission attention has been drawn to earlier order passed by the learned Company Judge in Company Petition No. 72/2009 dated 23.4.2010 wherein the petition filed by the company seeking a restoration of the name of the company to the Register of the ROC had been declined. Submission being that while declining this prayer of the company the Court had noted that the company had voluntarily sought to get its name struck off under the Simplified Exist Scheme and chosen not to exercise its option under Section 3(3) and Section 3(5) of the said Act to enhance its capital to the statutory mandate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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