The main legal point established in the judgment is the discretion to restore a company under Section 560(6) of the Companies Act, 1956, and the interpretation of 'justness' from a commercial and societal perspective.

MANMOHAN, J (Oral):

This application has been filed on behalf of ZTE Corporation under Order 1 Rule 10 read with Section 151 Code of Civil Procedure for impleadment/intervention.

Since the applicant has been heard on merits, the present application has become infructuous. It accordingly stands disposed of Co. Pet. 200/2011Page 1 of 12 Co. Pet. 200/2011

1. Present petition has been filed under Section 560(6) of the Companies Act, 1956 (for short ‘Act’) read with Rule 9 of the Companies (Court) Rules, 1959 seeking restoration of respondent No.2 company in the register maintained by the Registrar of Companies.

2. Both the petitioners claim to have worked as consultants to the respondent No.2 company. In the petition, it has been stated that the petitioners have not been paid their outstanding salaries amounting to `6,54,000/-.

3. Mr. Arun Bhardwaj, learned senior counsel for petitioners has drawn the attention of this Court to the Balance Sheet of the respondent No.2 company at page 10 of the paper book to show that the current liabilities of the company amounting to `10,94,665.21/-include the amount due and payable to the petitioners by the respondent No. 2 company.

4. It is further stated in the petition that respondent No.2 company has won an arbitration case against one M/s. ZTE Corporation (ZTE) which is a company based in China. It is the case of the petitioners that respondent No.2 company is not taking any steps to enforce the Foreign Award.

5. Mr. Arun Bhardwaj, learned senior counsel for petitioners submits that the petitioners who are creditors of the respondent No.2 company are aggrieved by the malafide action of the former management of the respondent No.2 company by virtue of which, they have got respondent No.2 struck off from the Register of Companies under the Simplified Exit Scheme 2003. In this connection Mr. Arun Bhardwaj, learned senior counsel for petitioners has drawn my attention to paragraphs 2, 3 and 6 of the present petition. Mr. Bhardwaj prays that the respondent No.2 company be restored to the register maintained by the respondent No.1 and the respondent No.2 company be placed in the same position as if its name had never been struck off.

6. Mr. Amit Sibal, learned counsel appearing for the intervenor-M/s. ZTE Corporation contends that respondent No.2 company had suppressed the fact that it had been struck off from the Register of Companies not only from the arbitral tribunal, but also from the High Court in OMP No. 359/2006, OMP No. 65/2008 and Ex.P. No.

7. Mr. Sibal states that the petitioners are colluding with the respondent No.2 company inasmuch as the petitioners have filed the Foreign Award and other documents which could only be in the possession of the respondent No.2 company.

8. Mr. Sibal also submits that the petitioners have no locus standi to file the present petition as they have not produced any material to show that petitioners had ever claimed their debt from the respondent No.2 company.

9. Mr. Sibal further submits that the present petition is barred on 334/2010 the ground of res judicata inasmuch as Hon’ble Mr. Justice rd Sudershan Kumar Misra vide order dated 23April, 2010 has already rejected the respondent No.2 company’s application for restoration. He points out that the said order has attained finality.

10. Mr. Sibal lastly submits that the intervenor is willing to repay the entire debt of the petitioners provided the present petition is dismissed.

11. Mr. K.S. Pradhan, Deputy Registrar of Companies states that the respondent No.2 company had itself made an application for being struck off in terms of the Simplified Exist Scheme 2003 and at the time of making the said application, every Director of the company had submitted an indemnity bond making them liable for any dues and claims of the creditors.

12. Having heard the parties at length, this Court is of the view that it is essential to first outline the scope and ambit of Sub-section 6 of Section 560 of the Act. T