TMI Blog2017 (7) TMI 825X X X X Extracts X X X X X X X X Extracts X X X X ..... the order dated 12.7.2013 is required to be considered as 'per incuriam'. The provisions of Section 3(3)and Section 3 (5) of the Companies Act, 1956 has not been taken note of at the time of rendering the order on 12.7.2013 making the order Hon'ble High Court per incuriam. It is a classical case where substantive statutory provisions have escaped notice of the High Court which direct material effect on the issue raised. Therefore, such an order attracts the title of 'per incuriam'. Therefore, we do not find any justifiable reason to condone the above lapse of the Petitioner Company and neither the same has been prayed for. In the circumstances, we do not find any infirmity in the action of the Respondent-ROC in striking off the name of the Company from the register of companies and hence this Petition is dismissed with cost of ₹ 10,000/- payable by the Petitioner to the Respondent within a period of two weeks from the date of its order. - COMPANY PETITION NO. 935/2015 - - - Dated:- 30-6-2017 - MR. M.M. KUMAR AND MR. R. VARADHARAJAN, JJ. For The Petitioner : Soumya Dutta, Advocate For The Respondent : Manish Raj, Company Prosecutor ORDER R. Varad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the above said change in the registered office has not been taken note of by the Respondent - ROC. In the year 2008, the name of the Petitioner Company was struck off from the register by the Respondents vide GO dated 26.4.2008 on account of non-filing of statutory returns including balance sheet and annual returns for the year 2000 and onwards as also on account of non-enhancement of the minimum paid up capital as required under the provisions of Companies Act, 1956. However, on coming to know that the name of the Company had been struck off from the register of companies being maintained by the Respondent, the Director of the Company namely Shri Ashok Arora in the year 2013 had filed a Petition under Section 560(6) of the Companies Act, 1956 being CP No. 16/2013 before the Hon'ble High Court of Delhi seeking for the restoration of the name of the Company. However, in the said Petition the Respondent through the Deputy Registrar filed a counter affidavit raising objections to the effect that the Petitioner Company had not filed its statutory documents i.e. annual returns from 2000 to 2012 as well as the balance sheet for the same period and other forms i.e. Form-2 and Fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the above said orders passed by the Hon'ble High Court on 12.7.2003, the Petitioner Company claims to have completed all the formalities due to which it gained back its status as 'active company' as is evident from the statutory report obtained from MCA website. Despite the above facts, it is averred that on 11.2.2015, Respondents herein was once again served a notice complaining about the non-enhancement of the minimum paid up capital to ₹ 1.00 lakh within the stipulated time and the said notice was addressed to a different address as compared to the registered office of the Company. However, as the notice was also served on the Director named above at his residential address, reply dated 22.2.2015 was also sent to the notice of the respondent, wherein, it was specifically stated that the share capital of the Company had already been increased. 5. However, subsequent to the reply, the Petitioner Company came to know that its name had once again been struck off on 29.5.2015 during the course of final hearing of a suit, in which the Company happens to be the plaintiff, pending before the District and Sessions Judge, Tis Hazari, Delhi. 6. It is contended by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the statutory requirement as required under Section 3(3) of the Companies Act, 1956 and for the aforesaid reason, Respondent was forced to strike off the name of the Petitioner Company pursuant to Section 3(5) of the Companies Act, 1956. The representative of the Respondent stresses that the Petitioner Company has failed to comply with the directions of the Hon'ble High Court dated 12.7.2013 and that taking into consideration the non-enhancement of the paid up capital as well as non- compliance with the orders of the Hon'ble High Court, the Respondent who is under statutory obligations to act pursuant to Companies Act, 1956, initiated action under Section 3(5) of the Companies Act, 1956 and did not have any malice while taking action for non-compliance of the provisions of Companies Act, 1956 as alleged by the Petitioner Company. 8. Having heard learned counsel for the parties we find that the main thrust of the argument of the Petitioner is that already the name of the Company which was struck off from the register of members earlier. It was directed to be restored by the Hon'ble High Court vide order dated 12.7.2013, wherein the fact of enhancement of capital ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall be struck off from the register by the Registrar. 11. Upon a reading of the above, it is clearly evident that if the Company had failed to enhance its paid up capital in the manner as specified under sub-section (3) of Section 3 of the Act, such Company shall be deemed to be a defunct Company' within the meaning of Section 560 and its name was to be struck off from the register by the Registrar by virtue of sub-section (5) of Section 3 of the Act. Hence, there is credence in the contention of the Respondent that it is statutorily obliged by virtue of the provisions of Section 3(3) read with Section 3(5) of the Act to strike off the name of the Petitioner Company as a defunct Company. 12. It appears that the above provisions of Section 3(3) and Section 3(5) of the Companies Act, 1956 were not brought to the notice of Hon'ble High Court at the time of argument as the said order no where discusses about the compliance or non- compliance on the part of the petitioner company. 13. A careful perusal of the order discloses that it has gone on the premise that the Petitioner Company has not complied with filing of the statutory returns, namely annual returns and b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss power on the Municipal Corporation to direct removal of encroachments from any public place like pavements or public streets, and without any citation of authority. Accordingly, we do not propose to uphold the decision of the High Court because, it seems to us that it is wrong in principle and cannot be justified by the terms of the relevant provisions. A decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute. So far as the order shows, no argument was addressed to the Court on the question whether or not any direction could properly be made compelling the Municipal Corporation to construct stall at the pitching site of a pavement squatter. Professor PJ. Fitzgferald, editor of the Saimond on Jurisprudence, 12th edn., explains the concept of sub silentio at p.153 in these words: A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the Court or present to its mind. The Court may consciously decide in favour of one party because of point A, which it considers an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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