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TMI Blog2017 (7) TMI 825X X X X Extracts X X X X X X X X Extracts X X X X ..... any order; C. To file Audited Balance Sheets, Annual Returns and other documents for the financial year 2000-2001 onwards with the Respondents; D. Such further and other order or order(s) be made and /or direction or directions be given as to this Hon'ble Court may deem fit and proper. 2. Facts as averred in the Petition are that the Petitioner company was incorporated on 18.8.1994 with an authorised capital of Rs. 10,00,000 (ten lakhs) divided into 1,00,000 (one lakh) equity shares of nominal value of Rs. 10/- each. At the time of incorporating the said company Mr. Ashok Arora and his wife Mrs. Vimal Arora were Directors of the Company and each subscribed to one share of nominal value of Rs. 10 each thereby having a subscribed capital of Rs. 20/-. On 11.09.2012, it is claimed that one of the Directors of the Company namely Mrs. Vimal Arora expired and that one Mr. Prabhu Dayal was inducted as a new Director and subsequent to his induction the share capital of the Company was increased by Rs. 1,50,000/-. The Petitioner further avers that the main object of the Company is to carry on the business as builders, colonizers, estate developers, architects and civil contractors a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er dated 12.7.2013 was pleased to pass the order (Annexure -D) and the same for ready reference is reproduced below: 1. This petition has been filed under Section 560(6) of the Companies Act, 1956 ('Act') seeking restoration of Akash Ganga Builders Private Limited (hereafter referred to as 'Petitioner company'). 2. The reply to the said petition dated 29th April, 2013 of the Registrar of Companies (ROC) has been perused. It is pointed out that the Petitioner company has not filed its annual returns and balance sheets from 2000 to 2012 and other statutory forms. 3. In view of the facts that the annual returns and balance sheets have not been filed by the Petitioner Company for a period of nearly thirteen years, learned counsel for the Petitioner states that the Petitioner Company would pay additional cost along with filing fee, as applicable to the ROC against filing of the above said documents. 4. Having considered the above submissions, it is directed that subject to the Petitioner paying Rs. 20,000/- as costs to the Central Government within six weeks, the name of the Petitioner company shall stand restored and its status would be changed from 'inactiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parable loss and serious prejudice due to striking off. It was despite the fact that the Petitioner Company was in operation and was carrying out its business at the time of striking off on 29.5.2015. 7. The Respondent has filed a formal reply to the above Company Petition and perusal of the same discloses that the facts averred in the reply to the earlier Company Petition filed by the Petitioner in CP No. 16/2013 before the Hon'ble High Court, has been stated therein as well as mentioned in the order passed by the Hon'ble High Court dated 12.7.2013 which has already been extracted in the preceding paras. The Respondent-ROC contends that in relation to the said order dated 12.7.2013, and contrary to the said order wherein statutory documents were required to be filed within 8 weeks, the petitioner company had only filed balance sheet for the year 2013. Accordingly to the respondent a perusal of the said balance sheet discloses that the paid up capital as on 31.3.2012 had been stated to be Rs. 20/-and the same is less than the minimum paid up capital prescribed of Rs. 1.00 lakh. Further from the said balance sheet for the year ended 31.3.2013, the paid up capital is disclos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies Act, 1956 will automatically result under Section 3(5) of Companies Act, 1956 that the name of the Company be struck off and hence it is contended that the respondent being a statutory authority is bound by the provisions of the Companies Act and has acted only in accordance with law. 10. Under the Act of 1956 for ascertaining the statutory minimum which is required to be maintained as the paid-up capital of the Company and for the consequences of not maintaining the same, it will be worthwhile to extract the provisions of Section 3(3) as well as Section 3(5) which delineates the statutory requirement of minimum paid up capital with reference to a private limited company and the consequences to follow because of non-maintenance of the said statutory minimum as envisaged under Section 3(3) of the Companies Act, 1956 for brevity referred to hereinafter as 'Act':- "Section 3. Definitions of "company", "existing company", "private company" and "public company" (1) xxxxxxxxxxx (2) xxxxxxxxxxx (3) Every private company, existing on the commencement of the Companies (Amendment) Act, 2000, with a paid-up capital of less than one lakh rupees shall, within a period of tw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f ROC that the order dated 12.7.2013 is required to be considered as 'per incuriam'. Reference in this connection to the decision of the Hon'ble Supreme Court rendered in Municipal Corporation of Delhi v. Gurnam Kaur [1989] l SCC 101 which has been oft cited including in subsequent judgments, namely Sunita Rao v. Municipal Corpn. of Delhi [MANU/CA/1023/2015] is to the following effect: In Municipal Corpn. of Delhi v. Gurnam Kaur (MANU/SC/0323/1988:1989)(l) SCC 109), Hon'ble Supreme Court ruled that the pronouncement of law, which are not part of the ratio decidendi, are classed as obiter dicta and are not authoritative. In the said case, it was also ruled that 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. Quoting Professor P.J. Fitzgeralt, editor of the Salmond on Jurisdiction, 12th Edn. Explaining the concept of sub silentio at p.153 their lordships viewed that precedents sub silentio and without argument are of no moment. Para 11 and 12 of the said judgement read thus: "11. Pronouncements of law, which are not part of the ratio decidendi are classed as obit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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