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2022 Supreme(SC) 993
SUPREME COURT OF INDIA
AJAY RASTOGI, B.V. NAGARATHNA, JJ.
Nirendra Nath Kar – Appellant
Versus
Gopal Navin Bhai Dave and Others – Respondents
Civil Appeal No. 4448 of 2015
Decided On : 29-09-2022
For the Appellant(s) : Mr. K. Raghavacharyulu, Sr. Adv. Mr. Kailash Pandey, Adv. Mr. Ranjeet Singh, Adv. Mr. Gaichangpou Gangmei, AOR
For the Respondent(s): Mr. Dhruv Mehta, Sr. Adv. Mr. Amar Dave, Adv. Mr. Pankaj Jain, Adv. Mr. Ashok Kumar Jain, Adv. Mr. Shyam Agarwal, Adv. Mr. Bijoy Kumar Jain, AOR Mr. Sanjay Jain, Ld. ASG Mr. Anukalp Jain, Adv. Mr. Padmesh Mishra, Adv. Ms. Swati Ghildiyal, Adv. Mr. B.K. Satija, Adv. Mr. Arvind Kumar Sharma, AOR
IMPORTANT POINT
Name of a defunct company cannot be restored in Register of Registrar of Companies.
Headnote:
Companies Act, 1956 – Section 560(5) – Striking of name of Company by Registrar of Companies (RoC) from register of RoC – Document produced by appellant including DIN forms obtained much after name of Company was struck off and even Form 32 which has now been placed on record by appellant, has been seriously disputed by respondents – For all practical purposes, name of Company was struck off way back on 27th January, 2006 and paid-up share capital as per last balance sheet of 2003 reduced to Rs.7000/- in terms of Section 3 of Act 1956, such companies are deemed to be defunct companies and sixteen years have rolled after date of striking off name of Company in year 2006, there is hardly any justification to restore name of Company at this stage, particularly, when there are no operations of Company all throughout – Finding of fact recorded by Division Bench of High Court under judgment impugned, upheld. (Paras 8, 10, 12 and 13)
Facts of the case:
Instant appeal is directed against the judgment and order passed by Division Bench of the High Court of Calcutta dated 17th October, 2012 while setting aside the finding returned by Single Judge dated 8th August, 2012 in sequel affirmed order of Registrar of Companies (RoC) striking off the name of Company from the register of RoC by an Order dated 27th January, 2006 in exercise of power under Section 560(5) of Companies Act, 1956.
Findings of Court:
Division Bench of High Court under the impugned judgment has proceeded on the basis of facts referred to in affidavit in opposition filed by the RoC while recording a finding regarding the locus of the appellant in assailing the order of Registrar striking of the name of Company under Section 560(5) of Act, 2003 and, at this stage, it is difficult to place reliance on documents placed by the appellant to claim himself to be one of Directors of the Company.
Result : Appeal dismissed.
JUDGMENT :
AJAY RASTOGI, J.
1. The instant appeal is directed against the judgment and order passed by the Division Bench of the High Court of Calcutta dated 17th October, 2012 while setting aside the finding returned by the learned Single Judge dated 8th August, 2012 in sequel affirmed order of the Registrar of Companies (RoC) striking off the name of the Company from the register of RoC by an Order dated 27th January, 2006 in exercise of power under Section 560(5) of the Companies Act, 1956 (hereinafter being referred to as the “Act 1956”).
2. The brief facts of the case are as under:
The initial incorporation of the Company was in the name of Basanti Cotton Mills Private Limited with three Directors, namely: (i) Gopal N. Dave, (ii) Nikhil Basant Lal Merchant, (iii) Paresh Basant Lal Merchant and the authorized share capital of the Company was Rs. 10,00,000/- divided into 1,00,000 equity shares of Rs. 10 each. The name of the Basanti Cotton Mills Private Limited was changed to Basanti Cotton Mills (1998) Private Limited on 3rd March, 2000. The last annual return and audited accounts were filed with the Registrar of Companies for the financial year 2002-2003. The name of the Company in terms of Section 560(5) of the Act, 1956 was struck off by the Registrar of Companies, West Bengal on 27th January, 2006 at the instance of the respondents (Directors of the Company).
3. It may be relevant to note that the Registrar of Companies in its affidavit in opposition before the High Court asserted that the company was not functioning and not carrying out any business and the last annual return was filed of the year 2002-2003. The relevant extract is quoted hereunder:
Basanti Cotton Mills (1998) Pvt. Ltd.
| 12.08.1998 | The company was formed and registered under the Companies Act 1956 as Basanti Cotton Mills Pvt. Ltd. bearing Registration No. 87716. |
| First Directors of the Company were: | |
| (a) GOPAL N. DAVE | |
| (b) NIKHIL M. MERCHANT | |
| (c) PARESH V. MERCHANT | |
| 10.03.2003 | Last Annual Return filed by the company made upto 04.02.2003 wherein the following were shown as its directors. |
| (a) GOPAL N. DAVE | |
| (b) NIKHIL M. MERCHANT | |
| (c) PARESH V. MERCHANT | |
| As per Annexure-A | |
| 23.12.2003 | Last Balance Sheet of the Company as at 30.09.2003 filed by the company. |
| As per Annexure-B | |
| 03.03.2009 | Name of the Company changed from Basanti Cotton Mills Pvt. Ltd. to Basanti Cotton Mills (1998) Pvt. Ltd. under Section 21 of the Companies Act 1956. |
| As per Annexure-C | |
| 10.10.2008 | DIN No. 3 in respect of Nirendranath Kar filed under MCA online filing system |
| As per Annexure-D | |
| 17.11.2008 | One Form No. 18 filed under the signature of Narendranath Kar showing the change of Registered Office of the company from B.T. Road Panihati to 109-F, 139F and 137 F.B.T. Road, Panihati w.e.f. 10.10.2008. |
| 10.10.2009 | As per Annexure-E |
| 05.11.2009 DIN No. 3 in respect of Dipali Chowdhury and Babulal Banerjee filed under MCA online filing system under the signature of Nirendranath Kar. | |
| As per Annexure-F | |
| N.B. | |
| (1) In this regard it may kindly be pointed out that though DIN NO. 3 in respect of Nirendranath Kar, Dipali Chowdhury and Babulal Banerjee has been filed online under the Digital signature of Nirendranath Kar, however no Form-32 has been filed showing the appointment of the said three persons as directors of the company with Registrar of Companies West Bengal (ROC, WB). In terms of the provisions of Section 303 of the Companies Act, 1956. | |
| (2) DIN 3 form could be filed by a person for himself and thereby his name used to become recorded as Director of the Company. But corresponding filing of Form-32 is necessary to corroborate the DIN 3 filed. | |
| (3) In view of the above it can be said that the names of Nirendrana | |
