TMI Blog2016 (8) TMI 391X X X X Extracts X X X X X X X X Extracts X X X X ..... ctors including the applicant under Section 560(6) had asserted to the contrary. The Order dated 13th November, 2014 does not disclose the reasons for arriving at the finding that it was just that the Company be restored to the Register. In any case, an application could have been filed under Section 560(6) only if a Company, or any member or creditor felt aggrieved by the Company having been struck off. The Company having been struck off on the prayer of the Company itself and/or its directors, there can be no question of the Company being aggrieved by the striking off. Viswanath Agarwal who had himself prayed for striking off also could not be aggrieved by the striking off. The appeal is dismissed and the judgment and the order under appeal is affirmed - A.P.O.T. No. 386 of 2015, A.C.O. No. 142 of 2015, C.A. No. 423 of 2015, C.P. No. 936 of 2014 - - - Dated:- 11-5-2016 - Justice INDIRA BANERJEE And Justice SAHIDULLAH MUNSHI For the Appellant : Mr. Ratnanko Banerjee, Sr. Adv., Mr. Kuldeep Mullick, Adv., Mr. Chhandak Dutta, Adv. For the Respondent : Mr. S. N. Mookherjee, Sr. Adv., Mr. Nikhil Jhunjhunwala, Adv., Mr. V.V.V. Sastry, Adv., Mr. Sayantan Basu, Adv. J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... holding 24,000 shares in the company, took out an application for setting aside of the Order dated 13th November 2014, passed by the learned Company Court. It is the case of Calcutta Investment Ltd. in its affidavit in support of the Judges Summons, affirmed by Rajesh Khandelwal, that Viswanath Agarwal along with two other directors of the company, Abha Devi Agarwal and Ishan Agarwal had affirmed an affidavit and furnished an indemnity bond along with the application for striking off the name of the company, wherein they had categorically asserted that the company had no assets and no liabilities. Further, in the affidavit and in the indemnity bond, it had also been clearly mentioned that the company had been inoperative for the last one year and did not intend to do any business or commercial activity in future. By the Order dated 21st July 2015 under appeal, the learned Company Court allowed the application filed by Calcutta Investment Ltd. and recalled the Order dated 13th November 2014, by which the name of the Company had been restored to the list of Active Companies. The learned Company Court made it clear that the Company s name remained struck off and the Company had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gle Bench under Section 560 of the Companies Act, 1956 would be appealable under Clause 15 of the Letters Patent, if it was a final order deciding a controversy or deciding any right of a party. In support of his submission, Mr. Banerjee cited Shah Babulal Khimji Vs. Jayaben D. Kania and Anr. reported in (1981) 4 SCC 8. Mr. Banerjee argued that the company had been restored to the list of active Companies by the Order dated 13th November, 2014. Upon restoration pursuant to the Order dated 13th November, 2014, the amount as mentioned in the said order had been deposited with the Registrar of Companies. All annual returns and the Balance sheet from the year 2007 to 2014 had been filed with the Registrar of Companies. The Directors Ishan Agarwal, Abha Devi Agarwal and Viswanath Agarwal had resigned from the company and Arvind Parasramka being the appellant No. 2, Mrs. Shabana Khatoon and Mrs. Gita Prasad had become directors of the Company. Mr. Banerjee submitted that new persons had come into the management of the company and shares of the company had been transacted for valuable consideration. The company was functional doing business in compliance with all regulatory requirem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made by the company did not have value and such investments were written off. It later came to the knowledge of the directors as well as the shareholders that the value of investment of the company, earlier written off, had appreciated and could now be in the market at good price, which would be in the interest of all stake holders. Mr. Banerjee argued that, in the application under Section 560(6), it was also pleaded that there had not been any change in management after the date on which the name of the company was struck off. The assertion is irrelevant since there could be no question of change in management when there was no existence of the Company. It was also pleaded that the Directors of the company, Mr. Ishan Agarwal, Mrs. Abha Devi Agarwal and Mr. Viswanath Agarwal had expressed their intention not to continue as directors of the company and Mrs. Shabana Khatoon, Mrs. Gita Prasad and Mr. Arvind Parasramka had expressed interest in being appointed directors of the company. The Agarwals had ceased to be directors, when the name of the Company was struck off. There was no question of any intention to continue or not to continue as Director. There could be no requirem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Companies under a fast track scheme could be said to be aggrieved by the removal of its name from the Register of Companies, to maintain an application under Section 560(6) of the Companies Act. Furthermore, the Registrar of Companies had, in the case before the Karnataka High Court given his consent to the restoration of the company. Mr. Banerjee argued that the applicant for recalling of the Order dated 13th November, 2014, Calcutta Investment is not an aggrieved party and as such, lacked locus standi to file the application which culminated in the order under appeal. Mr. Banerjee argued that Calcutta Investment holds 9% shareholding in Meghdoot Services Limited. It cannot therefore be affected by the order of restoration of the company. Mr. Banerjee has attributed malafide motive to the applicant, Calcutta Investment, contending that it suffered no legal grievance. In support of his contention that Calcutta Investment was not an aggrieved party, Mr. Banerjee cited Re : Sidebotham (XIV ChD 458). Mr. Banerjee also cited Thammanna Vs. K. Veera Reddy Ors. reported in (1980) 4 SCC 62. The proposition of law which emerges from the aforesaid judgments is that aggrieved person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r or creditor thereof, feels aggrieved by the company having been struck off the register, the Court, 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 Court 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. A bare reading of the aforesaid provision makes it amply clear that if a company, or any member or creditor thereof felt aggrieved by the Company having been struck off the Register, the Court might, on an application made by the Company, member or creditor, before expiry of 20 years from the date of publication in the official Gazette of the notice of striking off, the Court might pass orders and/or directions for placing the Company in the same ..... X X X X Extracts X X X X X X X X Extracts X X X X
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