TMI Blog2014 (2) TMI 64X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the property but was told by Singhania that it would take some time to get the original document. Trusting his word, the petitioner returned to England and between the years 1981 and 1986, repeatedly inquired about the conveyance deed with D.C. Singhania, who, under some pretext or the other kept deferring the issue and giving evasive answers. 3. His suspicion having been excited, the petitioner made inquiries in Delhi through persons known to him who informed him that the property was registered in the name of the company and was in the possession and personal use of D.C. Singhania since January, 1980. On being so informed, the petitioner filed a suit for declaration, mandatory injunction and damages. On 16.11.1989, the Civil Court granted stay in favour of the petitioner and restrained the defendants (the company, D.C. Singhania Solicitor Firm in which he was a partner) from alienating the property known as Jodhpur Gardens in any manner. In the written statement filed by Singhania in the suit, he stated that the total amount of Rs.4,50,000/- remitted by the petitioner was used for allotting shares of the company in favour of the petitioner, thereby enhancing the share ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct seeking restoration of the name of the company to the register of companies maintained by the ROC on the ground that it is just to do so having regard to the facts narrated above. It is pointed out that unless the name of the company is restored, the suit filed by the petitioner would be rendered meaningless or infructuous and there would be no effective remedy available to the petitioner to proceed against the company for the loss caused to him. It was contended on behalf of the petitioner that the respondents would get away with the property which rightfully belongs to the petitioner, if the name of the company is not restored to the register. 9. Counsel appearing for the Registrar of Companies took up a preliminary objection to the effect that a petition for restoration of the name of the company can be filed only by the company, member or creditor in terms of Section 560(6) of the Act and that the petitioner does not fall under any of these three categories. My attention was drawn to the annual return as on 30.09.2004 filed by the company with the Registrar of Companies in which only two persons were shown as shareholders (i) Singhania Foundation Education Trust holdin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppears 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. 13. Section 2(27) of the Act defines member , in relation to a company in a negative manner by saying that it does not include a bearer of a share warrant of the company issued in pursuance of Section 114. The definition does not assist in the resolution of the present controversy much, nor is the definition in section 41 helpful. Prima facie it would appear that a member of a company is a person who holds shares in the company as on the date on which the petition was filed. Undoubtedly the petitioner did not hold any share certificate of the company. However, shares had been allotted to him in the year 1989-90 for the amount of Rs.4,50,000/- which was remitted by him to the third respondent for the purpose of purchasing Jodhpur Gardens. The petitioner was allotted 5,150 equity shares and for this purpose the share capital of the company was enhanced to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... creditor who can file the petition. On this aspect of the matter I may refer to the judgment of a learned Single Judge (A.S. Pachhapure, J.) of the Karnataka High Court in Velu B. Pethi v. Kayesess Constructions Pvt. Ltd. Ors. : (2011) 163 Comp Cas 176. In this case the essential facts are somewhat similar to the facts of the present case. In that case, the petitioner purchased a residential site from the respondent-company for a price. Sale deeds were also executed by the company in his favour. Later it was found that the company did not have title to the plots since the plots had been acquired by the City Improvement Trust Board 23 years earlier to the sale of the plot to the petitioner. The petitioner was, however, unaware of the acquisition proceedings. After buying the plot he had also put up a construction on the same. The company s challenge to the acquisition proceedings was dismissed in the year 2008. The authorities pulled down the fences put up by the company upon the plot and also the construction put up by the petitioner. Later, based on the closure of the company, its name was struck off from the register by the ROC on the ground that it was not carrying on any bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the company be restored to the register. I do not see any scope for the application of the rule of ejusdem generis because of the presence of the words or otherwise between the words providing for the two types of situations. The presence of the words or otherwise denotes that even if the company was not carrying on any business or was not in operation at the time of striking off, it is still open to the company court to order restoration if it appears to the Court to be otherwise just . I may add that the words or otherwise have not been generally construed ejusdem generis as seen from the judgments of the Supreme Court in Lilawati Bai vs. State of Bombay : (AIR 1957 SC 521) and Kavallappara Kottarathil Kochuni v. State of Madras : (AIR 1960 SC 1080). 16. In Helen C. Rebella vs. Maharashtra S.R.T.C. : (1999) 1 SCC 90, it was observed by the Supreme Court that the word just denotes equitability, fairness and reasonableness having a large peripheral field. In understanding its scope, one must take into account all the facts and circumstances of the case and then decide what would be just and equitable. In M.A. Rahim and Anr. vs. Sayari Bai : (AIR 1973 Mad. 83) it was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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