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TMI Blog2018 (8) TMI 339X X X X Extracts X X X X X X X X Extracts X X X X ..... me of M/s. Kamran Kapadia Land Developers Pvt. Ltd., in the Register of Companies maintained by the ROC, Gujarat. Company Petition No. 131 of 2016 along with Company Application No. 347 of 2016 were transferred from Hon'ble High Court of Gujarat to this Tribunal in view of Rule 3 of the Companies (Transfer of Pending Proceedings) Rules and by virtue of the order of the Hon'ble High Court of Gujarat dated 10.3.2017. 3. This Tribunal renumbered Company Petition No. 131 of 2016 as TP No. 61 of 2017' and Company Application No. 347 of 2016 as TP No. 61-A of 2017'. 4. The Intervention Application filed by Mr. Abdul Wahab Durab Shah vide TP No. 61-A of 2017 was disposed of by this Tribunal on 7.9.2017 permitting the Intervening Applicant to file Objections, if any, in TP No. 61 of 2017. Accordingly, Mr. Abdul Wahab Durab Shah, filed objections. The ROC also filed Representation before this Tribunal. 5. The facts, that require for determination of the issue relating to the restoration of M/s. Kamran Kapadia Land Developers Pvt. Ltd., (hereinafter referred to as "the Company") are as follows; 5.1 The Company was incorporated on 23.2.2001. The Company was registered with the Office of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2012 filed by the Company for specific performance of contract against one Mr. Laxman Wagh and others. Intervening Applicant purchased land admeasuring 2 hectares 40 acres in Survey No. 430 situated at Wadjai Road, Dhule, Maharashtra, from the original owner on 12.9.2007 and mutation entry No. 50983 was already effected in the revenue records. According to the Intervener, the Company filed the Suit for specific performance against the original owners alleging that the original owners executed an Agreement of Sale in respect of land purchased by the Applicant Intervener in the year 2009. According to the Applicant Intervener, by the date of filing of Special Civil Suit No. 34 of 2012 by the Company, the Company's name was struck off from the Register of Members, but the Company concealing the said fact filed the Suit. The Intervening Applicant being one of the defendants in the said Suit sought for rejection of the Suit by filing an Application in the Civil Suit. According to the Applicant Intervener in order to defeat the Application filed by the Intervening Applicant herein in the Civil Suit questioning the maintainability of the Suit the Company came up with the Company Petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Company by post a letter enquiring whether the Company is carrying on business or in operation. Thereafter as laid down in sub-section (2) of Section 560, the Registrar shall wait for one month for reply from the Company. Thereafter, within 14 days after the expiry of one month ROC shall send a notice by a Registered Post referring to the first letter stating that no answer has been received for the first letter and if no answer is received for the second letter also within one month from the date of second letter a notice will be published in the Official Gazette with a view to striking the name of the Company. 10. Sub-section (3) of Section 560 says, in case if the Registrar did not receive any reply within one month or if Registrar receives an answer from the Company to the effect that it is not carrying on business or in operation then Registrar shall publish in the official gazette and send to the Company a notice that after expiry of 3 months from the date of that notice the name of the Company would be struck off from the Register and the Company will be dissolved. 11. In the case on hand, as can be seen from the Notification No. 324 dated 14.2.2008 and the 3 notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dhya Pradesh High Court allowed the petition for restoration and directed the Registrar accordingly. (c) Decision of the Hon'ble High Court of Andhra Pradesh in Company Petition No. 250 of 2015, in the matter of Velamati Chandrasekhara Janardan Rao v. Sree Raja Rajeswari Paper Mills Ltd. LAWS (APH) 2016 (7) 33. In the above said decision also, on the basis of a Resolution passed by the Board the name of the Company was struck off from the Register of Companies but later on a Shareholder of the Company who is the Chairman of the Board of Directors of the Company having got knowledge about certain assets of the Company at a later point of time moved the Company Court for restoration, of the Company. The Hon'ble Andhra Pradesh High Court, after giving elaborate reasons, allowed the Petition for restoration of the Company and accordingly gave directions to the Registrar of Companies. 15. The meaning of word 'just' is discussed by the Hon'ble Delhi High Court in Siddhant Garg's case (supra), in Para No. 18 as follows; "18. Further in the opinion of this Court, the expression 'just' would mean that it is fair and prudent from a commercial point of view to restore the company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ears "just" to the company court that the name 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 v. State of Bombay: (AIR 1957 SC 521) and Kavatlappara Kottarathil Kochuni v. State of Madras: (AIR 1960 SC 1080). 15. In Helen C. Rebella v. 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 another ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llow the procedure laid down in Section 560 sub-section (1), (2) and (3) of the Companies Act, 1956. 17.1 Secondly, in view of the pendency of First Appeal No. 1635 of 2017 before the Hon'ble High Court of Judicature, Bombay at Aurangabad which is filed by the Company against the Judgment and Order dated 1.4.2017 passed by learned 2nd Joint Civil Judge (SD), Dhule in Special Civil Suit No. 34 of 2012 which is filed by the Company for specific performance of the contract against the original owner and the Intervening Applicant, it is otherwise just to restore the name of the Company in the Register of Companies maintained by the ROC. 18. The objections of the Intervening Applicant are not at all sustainable in view of the above discussion, and hence overruled. 19. The ROC in his Representation stated that the Company has not filed its Annual Returns and Balance Sheets and therefore the name of the Company has been struck off for non-filing of statutory returns. The ROC has stated that the Petitioner has not given specific reasons for restoring the name of the Company. However, the ROC has stated that he has no objection if this Tribunal passes an appropriate order for restoring t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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