Patna High Court - Orders
Vijay Laxmi Niketan,Pvt.Ltd. vs The Union Of India & Anr on 11 December, 2008
IN THE HIGH COURT OF JUDICATURE AT PATNA
COM PET No.8 of 2008
VIJAY LAXMI NIKETAN,PVT.LTD.
Versus
THE UNION OF INDIA & ANR
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02/ 11.12.2008Heard learned counsel for the petitioner and learned counsel for the respondents.
2. This company petition has been filed by M/s Vijay Laxmi Niketan Private Limited for setting aside Gazette Notification No.33 dated 18.08.2007 at Serial No.57, as far as it relates to the petitioner Company and to declare the petitioner Company in operation, carrying on its business since its incorporation and also to allow the petitioner company to file its Annual Returns as well as the required documents with additional fees as contemplated under section 611(2) of the Companies Act, 1956.
3. Earlier the petitioner had filed Company Petition No. 03 of 2008 for declaring that the petitioner Company was in operation, carrying on business since its incorporation on 28.04.1997, after setting aside Gazette Notification No.33 dated 18.08.2007 and Letter No.ROC/PAT/7896/560/G/8070, dated 18.03.2008 passed by the Registrar of Companies. The said Company Petition No. 03 of 2008 was heard on 15.05.2008 (Annexure-7) and the Hon'ble Single Judge rejected the said company petition after finding that "for failure to file returns for seven consecutive years, the name of petitioner Company has been struck off by the Registrar of Companies by resorting to the 2 provisions contained in section 560 (5) of the Companies Act, 1956 on 31.07.2007 and the said company has already been dissolved." Hence the Hon'ble Single Judge did not find any good reason to interfere with the impugned order.
4. Against the said order of the Hon'ble Company Judge, the petitioner filed Company Appeal (SJ) No. 09 of 2008 , which was heard by Hon'ble Division Bench of this court on 18th September, 2008 (Annexure-8) whereafter learned counsel for the petitioner appellant prayed for withdrawal of the appeal with a liberty to the appellant to apply to the Registrar of Companies under section 611 (2) of the Act for condonation of delay and for restoration or re-registration of the appellant Company in the register by filing requisite additional fee. In the said circumstances, the appellate court allowed the appeal to be withdrawn with liberty as prayed for clarifying that the said order shall not be construed to mean that Registrar of Companies has power and competence to restore the registration of the company after its name has been struck off by the publication of notification in the official gazette, if otherwise the Registrar of Companies does not have any such power in law.
5. It transpires that after the withdrawal of the company appeal the petitioner-appellant sent a letter dated 29.09.2008 with respect to the aforesaid matter, whereafter the Registrar of Companies, Bihar and Jharkhand replied vide letter dated 03.10.2008 (Annexure-3) to the petitioner stating that the 3 Registrar of Companies had no power to condone the delay under section 611(2) and to restore the registration of the Company under section 560(6) of the Companies Act, 1956.
6. The issue of the provision of section 560 of the Companies Act has already been considered by this court vide order dated 15.05.2008 passed in Company Petition No. 03 of 2008 and it had been specifically held that the said company had already been dissolved and there was no good reason to interfere with the impugned order and the said order of the Hon'ble Company Judge had been affirmed by the appellate court when the company appeal filed against the said order by the petitioner was withdrawn by it. Furthermore, the Hon'ble Division Bench had also specifically observed that the liberty to withdraw shall not be construed to mean that the Registrar of Companies had power and competence to restore the registration of companies which clearly means that if the Registrar of the Companies had powers it may interfere and if he had no powers then he has naturally to reject the said petition which has exactly been done by the learned Registrar.
7. In the aforesaid facts and circumstances of the case, this court does not find any illegality in the said order of the learned Registrar of Companies nor does it find any reason to allow the reliefs as claimed by the petitioner and accordingly this company petition is dismissed.
harish/ ( S.N.Hussain, J.)