TMI Blog2012 (10) TMI 1227X X X X Extracts X X X X X X X X Extracts X X X X ..... ar 1995. As on 31.3.1995 the liability of the Company towards BICICO was ₹ 59,38,571/-. BICICO, acting under Section 29 of the SFC Act, 1951, took over the assets/possession of the said Hospital on 16.2.2002. The assets were advertised for sale but it is stated that the said sale has not been finalized and a writ application with respect to the same has been admitted for hearing by this Court on 13.9.2010 and is pending for hearing. 3. It may be pointed out that the land on which the Hospital's building was constructed, does not belong to the Company but was given on lease for 25 years ending in the year 2015 by the owners of the land who were also the major shareholders and their family members are the Directors of the Company. In the said lease deed it was stated that lessees have first right of extension of lease but if the lease was ultimately not extended the building would pass on to the lessor. 4. In the year 2009 OTS Scheme was announced by BICICO and pursuant to the same the Company is stated to have applied under the OTS Scheme and paid an amount of ₹ 87,67,055/- to BICICO as per the terms of the OTS Scheme, 2009. Thereafter No Dues Certificate has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent, Dr. Sandhya Ahuja has stated that she is a member and shareholder of the petitioner-Company and co-owner of the piece of land leased out for a period of 25 years. It is stated in the application that the Company petition filed under Section 560(6) of the Companies Act through Narendra Ahuja who has sworn affidavit on behalf of the Company is not maintainable as it is not supported by the resolution of the Company. It is further stated that her husband was the original promoter and Director of the Company who was ultimately ousted from the management of the Company and went back to United Kingdom where he was a practicing Doctor. Subsequently, due to humiliation by the other two members-Directors of the Company, he suffered a massive heart attack and died on 27.2.1995. It is submitted that after the other two promoters, namely, Narendra Ahuja and Surendra Ahuja, took over the management of the Company under their absolute control they indulged in all sorts of illegal activities including the widely reported Kidney Scam which led to the ultimate closure of the Hospital in the year 1996. It is further stated that the Directors of the Company, Narendra Ahuja and Surendra Ahu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Company is constructed has already been sold in favour of one Mr. Mohan alias Mr. Sanjay Kumar and the sellers have also received consideration money against the sale of the assets and liabilities of the Company as well as the land. It is further alleged that the same has been done ignoring the interest of the intervenor-respondent though her share in the Company is 16.41% and she is also co-owner of 1/3rd area of the land. It is further stated that left with no option the intervenor-respondent, Sandhya Ahuja has also sold her 1/3rd share of the land to Mr. Mohan @ Sanjay Kumar by another agreement of sale dated 14.2.2012. 9. It is asserted that in view of the aforesaid facts, the Company is non-operational and not complying with the provisions of the Companies Act as also the entire assets and liabilities of the Company as well as land have already been sold and thus Company petition does not survive and is fit to be rejected. 10. Learned counsel for the petitioner submits that the name of the Company has been struck off from the register of Companies without complying with the mandatory provisions of Section 560 of the Companies Act. It is contended that the notice un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assets and liabilities of the Company as also the land over which the building of the Company stands. For the said reason, it is urged by learned counsel for the intervenor-respondent that it is not a case where the equitable principle of it being just and proper to restore the name of the Company in the register of Companies can be invoked by the petitioner-Company. 16. It is also pointed out by learned counsel for the intervenor that under the terms and conditions of the lease deed on the termination of the lease in 2015 the building constructed over the leased out land will pass on to the lessors and thus there would be no place for the Company to carry on any business. 17. It is also the stand of the intervenor that instead of acting in the interest of the Company the other promoters/Directors have acted contrary to it by suo motu selling not only the land over which the building of the Company stands but also the assets and liabilities of the Company. It is contended with reference to the terms and conditions of the agreement for sale that it was the purchaser under the agreement for sale who had to clear the dues of BICICO under the OTS Scheme and as a matter of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t that particular provision or the Act seeks to achieve. Therefore, it is necessary to ascertain the intention. The word shall is not always decisive. Regard must be had to the context, subject-matter and object of the statutory provision in question in determining whether the same is mandatory or directory. No universal principle of law could be laid in that behalf as to whether a particular provision or enactment shall be considered mandatory or directory. It is the duty of the court to try to get at the real intention of the legislature by carefully analyzing the whole scope of the statute or section or a phrase under consideration. 16. Recently, a three-Judge Bench in Kailash vs. Nanhku Ed.-- [2005 (3) PLJR (SC) 241] : (2005) 4 SCC 480 while interpreting Order 8 Rule 1 of the Code of Civil Procedure was of the opinion: (SCC p. 496, para-33) 33. As stated earlier, Order 8 Rule 1 is a provision contained in CPC and hence belongs to the domain of procedural law. Another feature noticeable in the language of Order 8 Rule 1 is that although it appoints a time within which the written statement has to be presented and also restricts the power of the court by employing languag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to do so. The Registrar gave every opportunity by public and private notices to persons interested to show cause to the contrary or to satisfy him that in fact the Company was carrying on any business or was in operation. No such cause was ever shown. I feel that on the facts of this case the Registrar was quite justified in striking off this Company from the register. 35. Apart from the court's power to declare the dissolution of a Company void under S. 559, the power of the court to restore the Company, is really provided in sub-sec. (6) of S. 560 of the Companies Act, 1956. The reason for restoration must be sought in the satisfaction of the court that the Company, at the time when struck off, was carrying on business or in operation or otherwise that it was just that the Company should be restored to the register. The time of the striking off is the crucial point. At that crucial point of time it is plain and obvious on the facts as I have analyses, that no business was being carried on by this Company. 36. Lastly, on the interpretation of sub-sec. (6) of S. 560 of the Companies Act, 1956, I am of the opinion that this power of the Court to restore the Company is disc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Company petition, had already in the year 2008 itself by an agreement for sale, agreed to transfer the entire assets and liabilities of the Company (which they could not have done in their private capacity) as also their share in underlying land on which the building of the Company was standing. The said fact was a very relevant fact which ought to have been clearly brought before this Court but instead of stating the same, obfuscation was made by stating regarding the settlement of the loan of ₹ 88 lacs under the OTS Scheme with BICICO in July, 2009. From the agreement for sale as brought by the intervenor-respondent on the record, it is evident that not only the assets and liabilities of the Company have been sold but the purchaser had taken upon himself the dues of the company towards BICICO including ensuring release of the personal guarantee and the Bank guarantee given by Shri Narendra Ahuja through whom the present petition has been filed as an ex-Director-member of the Company. Thus, the stand of the petitioner that it had repaid ₹ 88 lacs to BICICO after taking loan does not appear to be justified in the face of the documents brought on the record by th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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