ASHIM KUMAR BANERJEE,J. - (1.) BASANTI Cotton Mills (1998) Private Limited was incorporated on August 12, 1998 under the provisions of the Companies Act 1956. The Directors were Gopal Navinbhai Dave, Nikhil Vasantlal Merchant and Paresh Vasantlal Merchant as per the Articles and Memorandum of Association. The last annual return and audited accounts were filed with the Registrar of Companies (hereinafter referred to as ROC), West Bengal for the financial year 2002-2003. On January 27, 2006 ROC struck off the name at the instance of the Directors named above. One Nirendranath Kar claiming to be a Director applied for restoration of the name under Section 560(6) of the Companies Act, 1956. The ROC filed affidavit-in-opposition. They asserted, the company was not functioning. They filed Annual Return up to 2003 that would also depict; the company was not carrying on any business. Hence, the Registrar rightly struck off the name from the register that would not call for any interference. The learned Single Judge allowed the application vide judgment and order dated October 6, 2010. His Lordship observed as follows:- "It has been admitted in the affidavit in opposition filed by the Central Government, that the procedure under Section 560(6) of the Companies Act, 1956, has not been followed before striking off the name of the company from the register of the Registrar of the Companies. Three notices are contemplated in such Section and the sub-Sections thereunder before such action can be taken. In view of the above procedural irregularity, the decision to remove the name of the company from the register is set aside. However, this will not preclude the Registrar from taking fresh action in accordance with law, as is available to him. "
(2.) BEING aggrieved, three private individuals namely Gopal Navinbhai Dave, Nikhil Vasantlal Merchant and Paresh Vasantlal Merchant filed an application for recall of the order dated October 6, 2010. The judgment and order of the learned Single Judge appearing at page 200-205 would depict, the name was struck off on January 27, 2006, for good reasons as the company was not doing any business and its assets and liabilities were nil. The learned Judge further observed, prayer for recall made after four years should not be entertained. Moreover, there was serious dispute as to who was in control of the company. The learned Judge however, asked the Registrar to hear the parties and decide the issue within the stipulated period. The Division Bench set aside the judgment and order of the learned single Judge dated March 22, 2011 and remanded the matter back to His Lordship by observing, the learned Company Judge was to determine the issue and not the Registrar. Accordingly, learned Judge heard the parties afresh and disposed of the application vide judgment and order dated August 8, 2012. His Lordship allowed the application and restored the name of the company that became the subject matter of the present appeal. The learned Judge held, on a combined reading of Sub-Section 1, 2, 3 and 5 of Section 560 it would infer, the company would only be defunct if it would not reply to the notice or would admit in reply that it was not carrying on business. Otherwise the name could not be struck off under the said provision. Since the Director of the company prayed for recall and the requisites were complied with, the Registrar 's order could not be sustained. His Lordship allowed the application of the appellants by setting aside and/or recalling the order dated October 6, 2010 passed at the instance of the respondent. Hence, this appeal. At the commencement of the final hearing of the appeal, Mr. Ratnanko Banerjee, learned counsel appearing for the respondent took the plea of the maintainability of the appeal. According to him, Section 560(6) was a superintending and/or appellate power of the learned Company Judge over a quasi-judicial decision of the Registrar. Such decision of the learned Single Judge would not be available to judicial scrutiny in an intra-court appeal that would be barred by law. As and by way of alternative submission, Mr. Banerjee contended, no finality arrived at by the order of the learned Single Judge, at least to the extent that was appealed from. Hence, the appeal would not be maintainable. He relied on the decision in the case of A.P. State Financial Corporation �VS- Mopeds India Ltd. (In Liquidation) reported in 2007 Volume-139 Company Cases Page-514 (Andhra Pradesh) and in the case of Kamal Kumar Dutta & Another �VS- Ruby General Hospital Limited And Others reported in 2006 Volume-VII Supreme Court Cases Page-613. Replying to the preliminary issue, Mr. S.N. Mukherjee learned senior counsel contended, the decision of the Registrar to strike out a name, was an administrative act. Any person aggrieved by such action was entitled to approach the learned Company Judge under Section 560 that would be amenable to scrutiny before the Division Bench under Section 483 of the of the said Act of 1956. Assuming Section 483 would have no application, a decision of a Single Bench would always be available for an intra-court appeal under Clause 15 of the letters patent or under the Code of Civil Procedure without having a specific statutory bar contained in any law of the land including the Companies Act 1956. Mr . Mukherjee distinguished the Andhra Pradesh judgment in the case of A.P. State Financial Corporation �VS- Mopeds India Ltd. (In Liquidation) (supra) by referring to Rule 163 and 164 of the Company (Court) Rules 1959 and contended, the adjudication by the Official Liquidator was available for judicial scrutiny of the learned Company Judge through the process of appeal whereas Section 560 should be construed as an original proceeding to be initiated before the learned Company Judge against any decision of the Registrar striking off the name of a company under Section 560. Hence, the said decision would have no application. Resuming his argument on the next day Mr. Mukherjee contended, Section 560 would pre-suppose an application before the learned Company Judge by a shareholder or a company or a creditor. Hence, it was the duty of the applicant to prove, he would fall under any of the said three categories. The learned Judge did not decide such issue.
(3.) COMING to the factual matrix, Mr. Mukherjee contended, the name was struck off on January 27, 2006. The applicant being the respondent no.1 herein for the first time approached the Registrar of Companies filing DIN (Director Identity Number) in 2008. The Registrar disclosed records appearing at pages 39 to 77 (Volume-II) of Paper Book that would show, as per the records of the Registrar the name of the respondent was conspicuously absent at the relevant time. He approached the Registrar for the first time on October 10, 2008 when he filed the DIN that could only be filed by the person himself. Form 32 was however conspicuously absent. On the strength of the DIN filed in 2008 about two years after the Company 's name was struck off, the respondent applied for restoration that the learned Judge allowed vide order dated October 6, 2010. On coming to know the appellant applied for recall. The Division Bench asked the learned Judge to decide on the issue that was remanded back to the Registrar. The learned Judge ultimately decided the issue by judgment and order dated August 8, 2012 appearing at pages 321- 333 of the paper book. Mr. Mukherjee strenuously disputed the transfer deeds appearing at page 251 onwards in the second volume of the paper book. According to him, the Company had no relationship with the respondent no.1 whose claim was based upon forged and fabricated documents. The learned Judge failed to appreciate, without deciding on his locus the application would not be maintainable. He relied on the following decisions to support his above contention. i) Shah Babulal Khimji �VS- Jayaben D. Kania & Another reported in All India Reporter 1981 Supreme Court Page-1786 ii) Special Deputy Collector (LA) �VS- N. Vasudeva Rao And Others reported in 2007 Volume-14 Supreme Court Cases Page-165 iii) Vijay Kumar Darwa �VS- Official Liquidator, Rohtas Inds. Itd. reported in All India Reorter 2008 Supreme Court Page-1613 Mr. Mukherjee lastly contended, Section 3(1)(3) defined private company having a minimum paid up capital of Rs.1 lac, whereas Section 3(5) would provide, a private company failing to enhance the paid up capital to the minimum one would be deemed to be a defunct company within the meaning of Section 560 and its name shall be struck off from the register by the Registrar. Mr. Utpal Moitra, learned advocate appearing for the ROC contended, the Registrar did not follow the scheme particularly Clause 9 and 10. He would however dispute the locus of the respondent no.1 as according to him the ROC did not have contemporaneous records to support the status of the respondent no.1. Per contra, Mr. Banerjee would submit, Section 560 could not be said to be an original proceeding. According to him, even if the interpretation of the provision as contended by Mr. Mukherjee could be held as correct The Company Court could not have more power than the original power that was being enjoyed by the Registrar. According to him, if no finality arrived at by the order passed under Section 560 by the learned Company Judge no appeal could be maintained before the Division Bench that would support the other interpretation as advanced by him. He would put emphasis on the word "aggrieved " as contained in the said provision that would be synonymous with the word "appeal ". Mr. Banerjee distinguished the decision in the case of Modi Korea Telecommunication Ltd. �VS- Appcon Consultants Pvt. Ltd. reported in 1999 Volume-II Calcutta High Court Notes Page-107 and in the case of Liverpool & London S.P. & I Association Ltd. �VS- M.V. Sea Success I And Another reported in 2004 Volume-IX Supreme Court Cases Page-512 to contend, unless finality arrived at no appeal under Clause 15 of the Letters Patent could be maintained. On factual matrix he contended, the documents appearing at pages 243 onwards of the second volume of the paper book particularly page 267 where ROC asked the respondents 1 to 5 to file return, would prima facie support his status as Director of the Company. Hence, the learned Judge did not commit any illegality directing restoration of the company 's name that did not finally decide the respective rights of the parties warranting invocation of appellate court 's power under Clause 15 of the Letters Patent. According to Mr. Banerjee, he was a Director since 1998. He filed document to the said extent. The Registrar did not dispute such document. On the interpretation of Section 3, Mr. Banerjee would contend, there could not be any automatic removal of name from the record of the Registrar. The procedure laid down under Section 560 was required to be followed. Having not done so, the Registrar faulted in striking out the name that was rightly restored by the learned Judge. Mr. Banerjee lastly contended, his writ petition on the subject issue was dismissed, if today the name of the company was allowed to be struck off he would be remediless. Having no apparent error on the face of the order the Court of appeal should not interfere with the order of the learned Single Judge. He also contended, under Clause 2(4)(i) of the exit scheme this scheme would not be available when there was a management dispute.;