A guarantor, who is not a shareholder, does not have the right to revive a company under the Companies Act.

The admitted case of the appellant is that he, along with his family members, held over 95% shares of the Company in question and they were in control of the affairs of the Company till the year 2006. At this stage, the appellant and his family members sold the share holdings to Sri S.N. Ladhani and his family members to the extent that the latter became share holders of 98.76% of the shares and the share holding of the family members of the appellant was reduced to 1.24% only. It is admitted by the learned Counsel for the appellant that at present the appellant himself has no share holding in the Company. At the instance of respondent No.1 Mohan Singh, who had filed a winding up petition (being COP No.56/2008) an order dated 18.12.2008 was passed by the learned Company Judge, directing the Company to be wound up and the Official Liquidator was directed to take possession of the affairs of the Company in question being M/s. S. Manikya Plastichem Private Limited.

2. Nearly five years after such order was passed, in the year 2013, a Company application was filed by the appellant with the prayer for recalling the order dated 18.12.2008 whereby direction for winding up of the Company, M/s. S. Manikya Plastichem Pvt. Ltd. was passed. Further prayer was made for being impleaded in the Company Petition as a party-respondent and also to condone the delay of 1505 days in filing the said application.

3. The application filed by the appellant was rejected by the learned Company Judge vide order dated 25.04.2013, primarily on the ground that the appellant was not even a shareholder of the Company in liquidation and as such, the application of the appellant was without merit. Aggrieved by the said order, these appeals have been filed.

4. We have heard Sri Ajesh Kumar S. learned Counsel appearing for the appellant as well as Sri Thomas V. Peter, learned Counsel appearing for respondent No.1 Company (Mohan Singh), Sri K.S. Mahadevan, learned Counsel for the Company in liquidation (Official Liquidator) and Ms. Poornima Hatti, learned Counsel appearing for the present majority share holders, who have sought impleadment in these appeals.

5. The submission of learned Counsel for the appellant is that he is a guarantor of the loan which was taken by the Company from the State Bank of India. He contends that he was an interested party and was thus a necessary party in the Company Petition. It is further contended that he has entered into negotiation with the Bank for clearing dues of the Bank and in turn, the properties of the Company which have been pledged as securities with the Bank may be handed over to the appellant so that the appellant could revive the Company, which would be for the benefit of the creditors as well as the shareholders. It is also submitted by the learned Counsel for the appellant that for such purpose, it would be necessary that the order of winding up dated 18.12.2008 be recalled and thereafter the appellant may be permitted to negotiate with the Bank and other creditors for revival of the Company, as the appellant has the expertise to do so.

6. Sri Thomas V. Peter, learned Counsel for respondent No.1 (Mohan Singh) who filed the Company Petition for winding up has submitted that after passing of the winding up order, the debts of respondent No.1 have been cleared by the appellant and as such, respondent No.1 has no interest left in the matter.

7. Sri K.S. Mahadevan, learned Counsel appearing for the Official Liquidator has submitted that the appellant would not be a necessary party in the proceedings, as he is neither a share holder nor a secured creditor and is merely a guarantor of the loan taken by the Company from the State Bank of India. It has been submitted that under law, the appellant would have no right or locus to revive the Company, as he is not even a shareholder of the Company and as such, the entire argument that the purpose of the appellant is to revive the Company would be a futile exercise. It is furth