TMI Blog2013 (11) TMI 1791X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1996 (hereinafter referred to as `Act' for the sake of brevity) and affirming the award dated 12.11.2003 passed by the sole Arbitrator. 2. I have heard the arguments of Sri.S.Shaker Shetty, learned counsel appearing for the appellant and Sri. N. J. Kumar, learned counsel appearing for M/s.Udwadia and Udeshi for respondent No.1. R-2 is served and unrepresented. Perused the records. 3. It is the contention of Sri. Shaker Shetty that award passed by the sole Arbitrator as affirmed by the trial Court is without considering the pleas advanced in the petition filed under Section 34 of the Act and same being erroneous he prays for setting aside the same for the following reasons: (i) There is no contract between the parties for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Verma Vs Manik Roy and others 4. Per contra, Sri.N.J.Kumar, learned counsel appearing for respondent No.1 would raise an initial objection with regard to maintainability of this appeal itself on the ground that appellant company has been struck off from the Register maintained by the Registrar of Companies pursuant to appellant filing application before the Registrar of Companies seeking voluntary striking off the name of the appellant company and same having been removed from the Register, appellant company ceases to be existing and as such appeal in question cannot be maintained by it since it is a non- existent company. He submits that records of the Registrar of Companies obtained by the appellant has been produced along with memos d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that parties were at liberty to invoke arbitration clause as found therein for resolution of disputes and as such the respondent-claimant had invoked the said clause and appellant cannot contend that there is no arbitration clause or contract between parties. In support of his submission he relies upon the Judgment of the High Court of Gujarat in the case of FLOATING SERVICES LTD., VS MV `SAN FRANSCECO DIPALOLA' reported in (2004) 52 SCL 762 (Guj). 5. In reply Sri.Shaker Shetty, learned counsel appearing for appellant would submit that annexures to the memos filed by the respondent need not be looked into by this court as they are not certified copies and even otherwise the contents of it cannot be accepted by this court as it is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpany gets a right to sue or be sued on the obvious ground that it is registered. Thus, only when it is incorporated it becomes a legal person and as such it can sue or be sued. In the absence of incorporation under the Companies Act, an association of persons or body of persons would not get themselves converted into a juristic person. 9. Under section 34 of the Companies Act, on registration of memorandum of a company, the registrar will certify under his hand that the company is incorporated and from the date of incorporation mentioned in the certificate of incorporation, such of the subscribers of the memorandum and other persons as may from time to time be members of the company, shall be a body corporate by the name contained in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne other than the Managing Director of the Company. Signature found at page 2 of the said application when compared with the signature of the Director of the appellant company would prima facie indicate that signatures are one and the same. When the appellant itself has voluntarily filed an application seeking for its name being struck off from the register maintained by Registrar of Companies and till date no application having been made under sub-section (6) of Section 560 of the Companies Act by appellant seeking restoration of its name, it has to be necessarily held that appellant company is a non existent company and as such it would not be entitled to sue. Thus, the appeal in question filed by the appellant would not be maintainable a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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