TMI Blog2018 (8) TMI 339X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of restoration of the name of the Company in the Register maintained by the ROC. Considering all the aforesaid aspects, this Tribunal is of the view that it is just to restore the name of the Company in the Register of Companies maintained by the Registrar of Companies, Gujarat. In view of the above, this Petition is allowed. The Registrar of Companies, Gujarat, Dadra & Nagar Haveli is directed to restore the name of the Company, M/s. Kamran Kapadia Land Developers Private Limited, to the Register of Companies upon the Petitioners (i) The Petitioners shall file all over due statutory returns with fee and additional fee as required under the Companies Act; (ii) The Petitioners shall publish a Notice in leading newspapers circulating in the District as well as in the Official Gazette of the Government of India with regard to the restoration of the name of the Company in the Register of Companies maintained by the Office of the Registrar of Companies, as per the draft notice approved by the Registrar of Companies at the expenses of the Petitioners; (iii) The Petitioners shall also pay an amount of ₹ 10,000/- to the Ministry of Corporate Affairs by way ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny has been ₹ 5,00,000/-divided into 50000 equity shares of ₹ 10/- each. The Paid-Up Equity Share Capital has been ₹ 1,50,000 divided into 15,000 equity shares of ₹ 10/- each. 5.2 The Company has been engaged in the business of real estate and construction. The Company had entered into an Agreement with third parties which led to dispute and litigation is pending before the Hon ble High Court of Judicature, Bombay at Aurangabad Bench. Petitioners could not file statutory returns with the ROC. 5.3 It is stated by the Petitioners that recently when they tried to upload statutory returns with the MCA Portal, the MCA Portal did not accept the documents. Thereafter, Petitioners approached the office of ROC and after some efforts came to know that the name of the Company has been struck off under Section 560 sub-section (5) of the Act. 5.4 Thereafter, Petitioners came to know about the Notification dated 14.2.2008 and the copies of three notices all dated 22.8.2007 purportedly issued by ROC under the provisions of Section 560 sub-section (1), (2) and (3) of the Act. 5.5 According to the Petitioners they have not received any notice from the ROC. Petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 of 2017) for restoration of the name of the Company. 6.2 The Intervening Applicant further stated that the Application filed by him was allowed by the learned 2nd Joint Civil Judge (SD), Dhule, vide Judgment and order dated 1.4.2017 and thereby Special Civil Suit filed by the Applicant for specific performance was dismissed by the learned Court. Aggrieved by the said Judgment and order dated 1.4.2017 passed by the learned Civil Judge (SD), Dhule, Petitioners herein preferred First Appeal No. 1635 of 2017 before the Hon ble High Court of Judicature, Bombay at Aurangabad. 6.3 The Intervening Applicant further stated that the Company has not produced any document to show that the Company is in existence after 1.4.2007. It is stated by the Intervening Applicant that the Petitioners failed to show that the Company at the time of striking off was carrying on business or any operation nor it is shown that after 1.4.2007 the Company has carried on its business or is in operation or otherwise till April 2016 when the company petition is filed before the Hon ble High Court of Gujarat under Section 560(6) of the Companies Act, 1956. It is stated by the Intervening Applicant that if th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2.2007 issued under Section 560(1), (2) and (3) show that ROC did not adhere to the procedure contemplated under section 560(1), (2) and (3) of the Companies Act, 1956. 12. Section 560 sub-section (6) enables the Company or any member or creditor aggrieved by the order striking off the Company passed by the ROC are entitled to file an Application before the Tribunal within 20 years from the date of striking off the Company. Section 560 sub-section (6) says that the Tribunal may restore the name of the Company to the Register if the Company was carrying on business or in operation. 13. Section 560(6) further says that the Company can be restored if it is just that the Company be restored to the Register. 14. In this context, it is necessary to refer to the following decisions on this aspect; (a) Decision of Hon ble Delhi High Court in Company Petition No. 200 of 2011 in the matter between Siddhant Garg. v. Registrar of Companies [reported in 2012 SCC Online Del. 802; In the above decision, the Company was struck off from the Register of Companies under SES of 2003. The Creditors of the Company filed a Petition aggrieved by the said striking off. In that decision, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to examine the concept of justness not exclusively from the prospective of a creditor or a shareholder or a debtor, but from the prospective of the society as a whole. Once this Court is convinced that it is just to restore the company, then to refuse the relief because some third party may be inconvenienced by it, would be harsh. 16. The Hon ble Andhra Pradesh High Court in the Judgment delivered in the case of Velamati Chandrasekhara Janardan Rao (supra), in Para No. 11 has held as follows; 11. In M.A. Panjwani v. Registrar of Companies and another, considered 4 scope of Section 560(6) and the meaning of words otherwise just held as follows; 11. Under sub-section (6) of Section 560 of the Companies Act, 1956 the company court has the power to order restoration of the company s name to the registrar of companies on the application made by the company itself or its member or creditor. Such an application can be made at any time before the expiry of 20 years from the publication of the notice for striking off the name published in the official gazette. There are only two circumstances in which the company court can exercise the power. The first is when it is satis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sayari Bai: (AIR 1973 Mad. 83) it was held by a Division Bench of the Madras High Court that the word just connotes reasonableness and something conforming to rectitude and justice, something equitable and fair. In Sidhant Garg and another v. Registrar of Companies and others: (2012) 171 Comp.Cas.326 it was held by this Court (Manmohan, J.) that the word just would mean that it is fair and prudent from a commercial point of view to restore the company and that the Court has to examine the concept of justness not exclusively from the perspective of a creditor or a member or a debtor, but from the perspective of the society as a whole. The special facts of the present case attract this principle. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oring the name of the Company as per provisions of Section 560 subject to the following; (a) Filing of overdue statutory returns; (b) Publication of notice in two leading newspapers circulating in the District and Official Gazette of Government of India in respect of restoration of the name of the Company in the Register maintained by the ROC. 20. Considering all the aforesaid aspects, this Tribunal is of the view that it is just to restore the name of the Company in the Register of Companies maintained by the Registrar of Companies, Gujarat. 21. In view of the above, this Petition is allowed. The Registrar of Companies, Gujarat, Dadra Nagar Haveli is directed to restore the name of the Company, M/s. Kamran Kapadia Land Developers Private Limited, to the Register of Companies upon the Petitioners complying with the following conditions; (i) The Petitioners shall file all over due statutory returns with fee and additional fee as required under the Companies Act; (ii) The Petitioners shall publish a Notice in leading newspapers circulating in the District as well as in the Official Gazette of the Government of India with regard to the restoration of the name o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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