NIRENDRA NATH KAR VERSUS GOPAL NAVIN BHAI DAVE & ORS
NIRENDRA NATH KAR VERSUS GOPAL NAVIN BHAI DAVE & ORS
Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S). 4448 OF 2015
NIRENDRA NATH KAR ….APPELLANT(S)
VERSUS
GOPAL NAVIN BHAI DAVE & ORS. ….RESPONDENT(S)
J U D G M E N T
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 20022003. 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 20022003. 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 AnnexureA
23.12.2003 Last Balance Sheet of the Company as at 30.09.2003 filed
by the company.
As per AnnexureB
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 AnnexureC
10.10.2008 DIN No.3 in respect of Nirendranath Kar filed under MCA
online filing system
As per AnnexureD
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.
As per AnnexureE
10.10.2009 05.11.2009DIN No. 3 in respect of Dipali Chowdhury and
Babulal Banerjee filed under MCA online filing system
under the signature of Nirendranath Kar.
As per AnnexureF
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 Nirendranath
Kar, Dipali Chowdhury and Babulal Banerjee may not be evident as
Directors of the company in absence of any such filing of Form No. 32 as
required under Section 303 of the Companies Act, 1956.”
[emphasis supplied]
4. After the name was struck off, it was published in the Gazette of
27th January, 2006. The bank also issued no dues certificate in favour
of Basanti Cotton Mills (1998) Pvt. Ltd. to release charge of the assets
of the Company. Complaint was filed by the appellant claiming to be
one of the Directors of the Company in the year 2010 before the High
Court under Section 560(6) of the Act 1956. Learned Single Judge
allowed the application by judgment and order dated 6th October, 2010
after recording a finding that the procedure as prescribed under
Section 560 of the Act 1956 was not followed before striking off the
name of the Company from the register of the RoC.
5. The order of the learned Single Judge was assailed before the
Division Bench of the High Court and that came to be set aside by an
order dated 22nd March, 2011 and the matter was remitted back to the
learned Single Judge to determine the issue afresh in accordance with
law.
6. The Company Judge, by judgment and order dated 8th August,
2012, allowed the application and restored the name of the company
and that again became the subject matter of challenge in appeal before
the High Court which came to be decided by the judgment impugned
dated 17th October, 2012 holding that the appellant has no locus
standi as he is neither a Company nor a member nor creditor hence
he cannot be said to be a person aggrieved to question the order of the
Registrar in striking off the name of the Company from the register of
RoC as referred to under Section 560(5) of the Act 1956. The extract
of the finding recorded by the Division Bench of the High Court, after
perusal of the admitted facts on records of the Company, maintained
by the Registrar is as under:
“In a case of the like nature when there was dispute with regard
to the status of the petitioner it would be safe for the Court to rely
upon the admitted records being the records maintained by the
Registrar.
From the records produced by ROC appearing at pages 39 to 77
of the paper book (VolumeII), we would find, as on the date of the
striking off not a single document would show the nexus of the
respondent no. 1 with the company. He came in picture in October
2008 through filing of DIN. Documents filed after 2008 would also
show, he was Director since 1998 as claimed by him. Such dispute
would have to be resolved in an appropriate forum. Section 560
would not give power to the Court to adjudicate as to such dispute.
The court would be relying upon the admitted records that would
clearly show, respondent no. 1 did not feature in the records. His
belated plea would also keep him at bay. His prayer for restoration
would wait for a decision in his favour on his status by a competent
civil court or any other appropriate forum. The learned Judge should
not have restored the name of the company at the instance of
someone whose identity is yet to be established.”
7. It is brought to our notice that as per the last balance sheet filed
for the year 20022003, the paid up share capital of the Company in
question was Rs.7,000/ and if that is being taken at the face value
which is supported by documentary evidence on record, as per the
scheme of Section 3 of the Act 1956, the Company is deemed to be a
defunct company.
8. Learned counsel for the appellant has taken us to the additional
documents which he has filed in support of his submission, although
it is informed that such documents were not available before the High
Court when the proceedings were initiated/instituted by the appellant.
That apart, the document produced by the appellant including the DIN
forms obtained in September/October 2008, much after name of the
Company was struck off in the year 2006 and even Form 32 which has
now been placed on record by the appellant has been seriously
disputed by the respondents.
9. Learned counsel for the respondents, on the other hand, has
brought to our notice the affidavit that was filed before the High Court
in the first instance of which a reference has been made by this Court
indicating that the present appellant was nowhere recorded as
Director of the Company at any given point of time.
10. In addition to it, learned counsel for the respondents further
submits that for all practical purposes, the name of the Company was
struck off way back on 27th January, 2006 and the paid up share
capital as per last balance sheet of 2003 is reduced to Rs.7000/ in
terms of Section 3 of the Act 1956, such companies are deemed to be
defunct companies and sixteen years have rolled after the date of
striking off the name of the Company in the year 2006, there is hardly
any justification to restore the name of the Company at this stage,
particularly, when there are no operations of the said Company all
throughout.
11. The Division Bench of the High Court under the impugned
judgment has proceeded on the basis of the facts referred to in the
affidavit in opposition filed by the RoC while recording a finding
regarding the locus of the appellant in assailing the order of the
Registrar striking of the name of the Company under Section 560(5) of
the Act, 2003 and, at this stage, it is difficult to place reliance on the
documents placed by the appellant to claim himself to be one of the
Directors of the Company.
12. Taking into consideration the material available on record and
the finding of fact which has been recorded by the Division Bench of
the High Court under the judgment impugned, we find no reason to
interfere.
13. Consequently, the appeal fails and accordingly dismissed. No
costs.
14. Pending application(s), if any, shall stand disposed of.
………………………….J.
(AJAY RASTOGI)
…..……………………..J.
(B.V. NAGARATHNA)
NEW DELHI;
SEPTEMBER 29, 2022.
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