COMP/36/2008 1/11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD COMPANY PETITION No. 36 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE K.A.PUJ ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= JAVNIKA NARESH RAVAL - Petitioner(s) Versus . - Respondent(s) ========================================================= Appearance : MRS SANGEETA N PAHWA for Petitioner(s) : 1, MR HARIN P RAVAL for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE K.A.PUJ Date : 28/02/2008 ORAL JUDGMENT 1. The petitioner, namely, Smt.Javnika Naresh Raval, Ex-Director of Zalak Cold Storage Pvt. Ltd., has filed this petition under Section COMP/36/2008 2/11 JUDGMENT 560(6) of the Companies Act, 1956, praying for restoration of the Company, namely, Zalak Cold Storage Pvt. Ltd., to the register of Companies maintained in the office of Registrar of Companies in the interest of justice and equity. The petitioner has also prayed for passing other incidental consequential and supplementary orders and directions as may be necessary and deemed fit by this Court. 2. This Court has issued notice on 5.2.2008 to the Registrar of Companies. Pursuant to the notice, Registrar of Companies has filed his appearance through his counsel Mr.Harin P. Raval and has also issued instructions to his counsel vide letter dated 18.2.2008 which is placed on record. 3. Mr. N.K.Pahwa, learned advocate appearing for the petitioner submitted that the petitioner was the first Director of the COMP/36/2008 3/11 JUDGMENT Company and was also the subscriber to its Memorandum of Association. The Company came to be incorporated on 28.10.1996 and was given certificate of incorporation by the Registrar of Companies, Gujarat vide Registration No.031012. The Company was incorporated with the object of Cold Storage Plant which is essentially based on power and fuel viability. The Low Pressure Gas which is supplied by ONGC is the most viable source of power for the cold storage plant. The Company had made application somewhere in the year 1998 to ONGC Ltd, for allocation of low pressure natural gas to the unit of the company from Limbodra Field of Ahmedabad Asset of ONGC Ltd. Vide letter dated 14.7.1998, a confirmation came to be given from Limbodra Field, the generation/storage of gas of ONGC Ltd., confirming allocation of 2000 SCMD of low pressure natural gas in favour of the company. The ONGC Ltd., also confirmed the said confirmation vide its COMP/36/2008 4/11 JUDGMENT letter dated 17.7.1998. However, no actual allocation of gas was made by ONGC in favour of the company despite repeated requests and reminders. As the other means of power were not viable as compared to the rent charges of cold storage at the relevant point of time, the Company could not continue its business in a viable manner. The Company was constrained to take steps under the provisions of Section 560 of the Act and followed the procedure thereunder by submitting appropriate application under the Exit Scheme for striking of the name of the petitioner from the register of companies maintained in the office of Registrar of Companies. The Registrar of Companies while accepting the application made an order for striking of the name of the company from the register as per the provisions of Section 560(5) of the Act. The Registrar of Companies has also published public notice in the Official Gazette dated 26.3.2002 which was in COMP/36/2008 5/11 JUDGMENT fact published on 13.4.2002. 4. Mr.Pahwa further submitted that in the intervening period, various viability factors in respect of cold storage plant have changed positively. The petitioner had made representation to ONGC Ltd., in the year 2005 and 2006. The ONGC Ltd., addressed a letter dated 15.5.2006 to the Company through its Director conveying its willingness to allocate 4000 SCMD of low pressure natural gas. However, even after writing the said letter, no further steps were taken by ONGC Ltd., showing its willingness to enter into agreement and for other formalities. The petitioner, therefore, made representation to the concerned Minister and pointed out the delay in allocation of gas supply by ONGC Ltd., despite its confirmation. Oral representations were also made before the concerned Minister of Petroleum & Natural Gas on 6.6.2007. ONGC Ltd., vide its letter COMP/36/2008 6/11 JUDGMENT dated 31.8.2007 confirmed that the competent authority has allocated 4000 SCMD natural gas from Limbodra Field under Ahmedabad Asset for the plant of the company at a price of US $ 4.75 MMBTU on fall back basis for a period of 2 years. 5. Mr.Pahwa further submitted that in the meanwhile the petitioner has also bought land bearing Survey No.157 in Village Pindara, District – Gandhinagar admeasuring 9510 Sq.Mtrs., by registered sale deed dated 4.4.2007 and has also made application for permission to use the land for industrial purpose. He has further submitted that after restoration of the Company's name to the register maintained by the Registrar of Companies, the company intends to set up a new cold storage plant on this land. The site is also well connected by both road and railways and is also close to Gandhinagar. The site is also close to the National COMP/36/2008 7/11 JUDGMENT Highway leading to Kandla/ Mundra thereby giving an impetus to the possible business of storing products and articles meant for export purposes. He has, therefore, submitted that considering all these aspects and subsequent developments, it is just that the company may be allowed to be restored to the register maintained with the office of the Registrar of Companies by exercising jurisdiction conferred under Section 560(6) of the Act. 6. Mr.Pahwa further submitted that by restoration of the Company to the register, no person or body would suffer any prejudice. There are no creditors both secured or unsecured as of the present date. There are also no statutory creditors. On the other hand, as the petitioner has received approval / permission from ONGC Ltd., for supply of gas and that the petitioner has also bought a big parcel of land for the purpose of setting COMP/36/2008 8/11 JUDGMENT up cold storage plant which would not only generate business but also employment opportunities. It would be, therefore, in the interest of the company and also in the public interest to permit restoration of the name. 7. Mr. M.Iqbal Shaikh, learned Standing Counsel appearing for the Registrar of Companies has submitted that the Registrar of Companies has no objection if the company is ordered to be restored to the register maintained by Registrar of Companies provided the petitioner agrees to file all the due statutory returns i.e. Balance Sheet and Annual Returns and other such forms, if any, which are required to be filed with ROC within 30 days and alongwith such filing fees and additional fees as per the provisions of the Companies Act, 1956 and also compliance of other statutory formalities, if any, required for restoration of the company on COMP/36/2008 9/11 JUDGMENT records of the Registrar of Companies. Mr.Pahwa agrees to comply with the requirements as suggested by the Registrar of Companies in his letter dated 18.2.2008. 8. Considering the provisions of Section 560(6) of the Companies Act, 1956 and considering the letter communicated by the Registrar of Companies dated 18.2.2008, the Court hereby considers the prayer made by the petitioner in the present petition. The Court is satisfied with the submission made by Mr.Pahwa and since the present petition is moved within the prescribed time limit and there is no objection from any corner, the prayer made by the petitioner in the present petition is hereby granted. The petitioner is hereby directed to comply with the provisions contained in Rules 93 and 94 of the Companies (Court) Rules, 1959. The petitioner is hereby directed to deliver certified copy of order within 14 days from COMP/36/2008 10/11 JUDGMENT the date of the order, and on such delivery, the Registrar of Companies do, in his official name, advertise the order in the Gazette of the State Government as well as issue public advertisement in two newspapers, namely, “Indian Express” English daily and “Loksatta-Jansatta” Gujarati daily, both Ahmedabad Edition. For meeting with these expenses the petitioner is hereby directed to deposit a sum of Rs.10,000/- with the Registrar of Companies and further pay counsel fees which is quantified to Rs.3500/- and the same should be directly handed over to Mr.M.Iqbal Shaikh, learned Standing Counsel appearing for the Registrar of Companies. The petitioner shall comply with the requirements indicated by the Registrar of Companies in his letter dated 18.2.2008 to which her counsel agreed before the Court. 9. Subject to the aforesaid directions and observations this petition is accordingly COMP/36/2008 11/11 JUDGMENT allowed. (K. A. PUJ, J.) kks