Advocates:
['KATNESHWARKAR P R AND G R SYED', 'BAGUL D S', '', '', '', '', 'Bachate Pralhad D', 'R/ TO SERVED', 'R/ SERVED', 'R/ SERVED', 'R/ TO', 'A TO & SERVED', 'R/ E DELETED', 'R/ SERVED', 'S P BRAHME', '']

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD

FIRST APPEAL NO.1635 OF 2017

WITH CIVIL APPLICATION NOS. 3084 OF 2020 WITH CIVIL

APPLICATION NO.3599 OF 2018 WITH CIVIL APPLICATION NO.7546

OF 2017

Mr.P.R.Katneshwarkar a/w Mr.G.R.Syed, Advocate for the appellant.

Mr.S.P.Brahme, Advocate for respondent Nos.1/1 and 1/2.

Mr.P.D.Bachate, Advocate for respondent Nos. 1/4 to 1/6.

Mr.D.S.Bagul, Advocate for respondent Nos. 2, 3, 5 and 6.

( CORAM : RAVINDRA V. GHUGE &

S.G. MEHARE, JJ)

DATE : DECEMBER 1, 2021

PER COURT :

1.

The appellant, original plaintiff in Spl.Civil Suit No.34/2012, is

aggrieved by the judgment dated 01/04/2017 by which the suit has

been dismissed as not being maintainable on the ground that the

plaintiff/company was de-registered on 14/02/2008 by the Registrar of

Companies (ROC In short). During the pendency of this appeal, the

National Company Law Tribunal (The Tribunal) delivered it’s judgment

on 21/02/2018 by which the petition filed by the plaintiff was allowed.

The decision of the ROC of de-registering the company was set aside

and the plaintiff company was restored on the rolls / register of

khs/Dec. 2021/1635-d

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companies.

2.

By CA No.3599/2018, the plaintiff prayed for leave to produce

the record as regards the proceedings before the Tribunal. Since we

have considered the said record, CA No.3599/2018 stands allowed. In

view of the above, the entire complexion of the proceedings undergoes

a change with the restoration of the registration of the

plaintiff/company.

3.

There is no dispute that the Trial Court has not dealt with the suit

on it'

s merits. The defendants raised a plea that a Company has a

legal/perpetual existence. If the Company is de-registered and on the

date of the filing of the suit, if such company is not on the roll of

registered companies, the suit would be untenable. Based on these

submissions, the Trial Court has dismissed the suit as being untenable.

4.

Both the sides have canvassed extensive submissions before us

and have travelled to the extent of the plaintiff having made an

incorrect statement in the suit, and that the cheques issued by the

plaintiff were dishonoured, and that the defendants were never ready

khs/Dec. 2021/1635-d

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and willing to perform the contract in the light of the sale deed dated

12/09/2003 and that a fictitious sale deed was created on 11/01/2009

so that the suit would be deemed to have been filed within the period

of limitation, which is 3 years from the date of refusal to execute the

agreement. All these issues have not been gone into by the Trial Court

and as such, we are not required to advert to the submissions of the

parties to this extent.

5.

The issue before us today, in view of the judgment of the Tribunal

delivered on 21/02/2018, is whether the restoration of the registration

of the plaintiff would be from the date of the de-registration of the

company when it'

s name was struck off from the register of Companies

by the ROC ?

6.

The learned Advocates representing the plaintiff have drawn our

attention to Section 560 of the Companies Act, 1956 which was

applicable to the cause of action before the Trial Court. Section 560

reads as under :-

"560. Power of Registrar to strike defunct company off register.

(1) Where the Registrar has reasonable cause to believe that a company is not

carrying on- business or in operation, he shall send to the company by post a

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letter inquiring whether the company is carrying on business or in operation.

(2) If the Registrar does not within one month of sending the letter receive

any answer thereto, he shall, within fourteen days after the expiry of the

month, send to the company by post a registered

1. Explanation omitted by Act 62 of 1956, S. 2 and Sch. (w. e. f. 1- 11- 1956 ).

2. Subs. by Act 31 of 1965, s. 62 and Sch., for "twenty- one" (w. e. f. 15- 10-

1965 ).

letter referring to the first letter, and stating that no