IN THE HIGH COURT OF JUDICATURE AT PATNA Company Petition No.9 of 2010 ====================================================== M/S Sant Kabir Cold Storage, Pvt. Ltd .... .... Petitioner Versus The Union Of India & Ors .... .... Respondents ====================================================== Appearance : For the Petitioner/s : Mr. Surendra Singh For the Respondents : Mr. Shiv Kumar ====================================================== CORAM: HONOURABLE MR. JUSTICE RAMESH KUMAR DATTA ORAL ORDER 17. 10-02-2012 Heard learned counsel for the petitioner. No one appears for the respondents, although counter affidavit and supplementary counter affidavit have been filed on behalf of the Registrar of Companies. The application has been filed for restoring the name of the petitioner company to the Register of Companies after setting aside the Gazette Notification dated 16.06.2007, at serial No.38 and letter dated 10.11.2010 issued by the Registrar of Companies, Bihar & Jharkhand. The petitioner company was registered on 20.1.1986. It is stated that as per the Articles of Association of the petitioner company at the time of incorporation three Directors were the first Directors, namely, (1) Sri Mahanth Vidyanand Dass, (2) Sri Amrendra Kumar and (3) Sri Shyam Sundar Dass. The main object of the company was to carry on all or Patna High Court COM PET No.9 of 2010 (17) dt.10-02-2012 2 any of the business carried on by the cold storage, preservation or confectionary concerned in all or any of their allied lines or any of the business of water house keepers, owners or letters of space, godowns, homes, buildings, depositories or stores (whether cooling, referigerationing, air conditioning or otherwise), Farmers, Horticulturist and without any way affecting the generality any of the above to own and maintain cold storage for the purpose of any goods of the company and of public and also to prepare ice and ice products. It is clear from the averments made in the company petition that at no point of time any statutory documents, returns, balance sheet including profit and loss accounts from 1986-87 till date have been filed. Now, the company is ready to file the said returns from 1986-87 onwards. It is only when one of the Directors, namely, Amarendra Kumar was searching the status of the company on M.C.A. portal, it was found that the name of the company has been struck off by the Registrar of Companies under Section 560 (5) of the Companies Act,1956. Thereafter, after obtaining necessary documents, the company petition has been filed. The allegation of the petitioner is that the provisions of Section 560 (1), (2) & (3) of the Companies Act were not Patna High Court COM PET No.9 of 2010 (17) dt.10-02-2012 3 complied with. It is further submitted that the first two Directors of the company, namely, Mahanth Vidyanand Dass and Shyam Sundar Dass were no more and the only surviving Director of the company is Amarendra Kumar. It is also stated that the company had taken loan of Rs. 26,07,583/- from the Bihar State Financial Corporation and in order to pay the said dues under the One Time Settlement Scheme Amarendra Kumar entered into an agreement with one Sujata Devi, w/o Anil Kumar resident of Bankipur Gorakh, Fatuha, District-Patna on 10.11.2010 for Rs.28,68,342/-, out of which she paid Rs. 8,00,000/- to Sri Amarendra Kumar by Bank Draft on 27.10.2010 and the remaining amount of Rs. 20,68,342/- as per the agreement by Bank Draft dated 7.12.2010 after acceptance of the application of the petitioner company under O.T.S. Scheme by the B.S.F.C. and thus the entire amount has been used for the liquidation of the dues of the company under O.T.S. Scheme of B.S.F.C. It is further stated that in order to revive the company, the said Sri Amarendra Kumar, Director of the Company has entered into another loan agreement with Anil Kumar, son of Shri Shiv Prasad, resident of Bankipur-Gorakh, Fatuha, District Patna on 15.11.2010 under which he had received Rs.10,00,000/- from him. Patna High Court COM PET No.9 of 2010 (17) dt.10-02-2012 4 In the aforesaid facts and circumstances, a prayer has been made to restore the name of the company in the Register of Companies. In the counter affidavit filed on behalf of the Registrar of Companies, it is stated that the Registrar of Companies has rightly struck off the name of the company under Section 560 (5) of the Companies Act, as the company had not submitted statutory returns since its incorporation before the Registrar of Companies. It is further submitted that the petitioner company has not given any plausible reason as to what were the circumstances which prevented it from submitting the statutory returns before the Registrar of Companies. The company was registered on 20.01.1986 and since then it did not file any statutory returns. Hence, the Registrar of Companies came to the conclusion that the company is defunct and the name of the company was struck off under Section 560 (5) of the Act. A supplementary counter affidavit has also been filed by the Registrar of Companies, in which it is stated that after verification of the records maintained by the office, it was seen that on 13.11.2006, the first notice under Section 560(1) inviting the attention of the company that it was not submitting its statutory returns with the office of the Registrar of Companies was sent Patna High Court COM PET No.9 of 2010 (17) dt.10-02-2012 5 under Speed Post to the company at its registered office at Govindpur Darya, Fatuha, District- Patna. Again on 24.4.2007, another notice under Section 560 (2) and on 23.5.2007, a notice under Section 560(3) of the Act were issued stating that since the company has not answered the notices issued on 13.11.2006 and 24.4.2007, hence, the Registrar of Companies has reasonable cause to believe that the company is not carrying on business or is in operation, which was also sent under Speed Post at the address of the registered office of the company to which no reply was received by the office of the Registrar of Companies. Zerox copies of notices dated 13.11.2006 and 23.5.2007 have been annexed as Annexures A and A/1 respectively to the supplementary counter affidavit. Ultimately, on non-receipt of the reply to the notices, the name of the company was struck off by Gazette Notification No.24 at serial No.38 dated 16.6.2007. On a consideration of the aforesaid facts, this Court by its order dated 13.5.2011 noted that the interests of the shareholders of the company have been sold out to a third party for an amount of Rs.28,68,342/- and the only surviving Director of the company petitioner, Amarendra Kumar, has taken all the aforesaid steps and further nothing has been brought on the record as to who are the share-holders of the company and to what extent Patna High Court COM PET No.9 of 2010 (17) dt.10-02-2012 6 and how their rights have been protected while Amarendra Kumar entered into the agreement with Sujata Devi for the loan of the aforesaid amount, pursuant to which he intends to hand over the company to the said Sujata Devi. This Court, accordingly, directed the petitioner to bring all the facts in detail on the record with the documents in support of the same. Thereafter, learned counsel for the petitioner company kept on praying for time, although a supplementary affidavit was filed which did not bring the facts on record as required by the order dated 13.5.2011. The submission was made by learned counsel for the petitioner that a detailed inspection would be made of the entire records of the company and thereafter, a proper supplementary affidavit would be filed. On five dates thereafter, a payer for adjournment was made on behalf of the petitioner. When the matter came up for hearing on 9.12.2011, this Court considered the further supplementary affidavit, which was filed on behalf of the petitioner after inspection of the records of the company in which a balance sheet as on 31st December, 1986 has been brought on the record, which was noted in the order of that date. In the said balance sheet under the Heading of Liability and sub-heading of Share Application Money an Patna High Court COM PET No.9 of 2010 (17) dt.10-02-2012 7 amount of Rs. 11,94,810.41/- has been shown but no explanation is to be found in the entire pleading of the petitioner as to who were the applicants, whose substantial amount was lying under the Heading of Share Applicaion Money and the only statement made is that three original subscribers and shareholders of the company have been issued shares amounting to Rs.3,000/-. This Court again directed the petitioner to satisfy on all the aspects of the matter by filing further affidavit. Thereafter, again on two dates prayers for adjournments were made on behalf of the petitioner. Today, learned counsel for the petitioner submits that despite his repeated communications, the sole surviving Director of the erstwhile company, Amarendra Kumar, is not coming forward or giving any instruction in the matter. In the aforesaid facts and circumstances, this Court is clearly of the view that important facts with regard to the share- holders of the company have been and are being suppressed before this Court. Moreover, nothing has been brought on the record to show that the company is carrying on business or was in operation at the time of striking off of its name from the Register of Companies. As a matter of fact from the materials on the record, it appears that the company has become defunct since a very long Patna High Court COM PET No.9 of 2010 (17) dt.10-02-2012 8 period of time, so much so that it has not filed the statutory returns or any returns since its incorporation. Moreover, the company has not been able to satisfy this Court as to who are the share-holders and how their interest had been protected in the agreement that has been entered into between Amarendra Kumar and said Sujata Devi. Thus, this Court also does not find any material to justify the restoration of the name of the petitioner company in the Register of Companies. Hence, in the light of the aforesaid discussions, this Court does not find any occasion to interfere with the impugned Gazette Notification dated 16.6.2007 at serial No.38. The Company Petition is, accordingly, dismissed. V.P.Sinha/- (Ramesh Kumar Datta, J)