IN THE HIGH COURT OF JUDICATURE AT PATNA Comp.App.(DB) No.2 of 2009 VIJAY LAXMI NIKETAN PRIVATE LIMITED having its office at Dwarikaadhish Mandir Lane, 4th Cross, Dr. Rajendra Prasad Road, Bhagalpur, P.S. Kotwali, Bhagalpur, 812002 District Bhagalpur, Bihar through its Director Mr. Bimal Kumar Jhunjhunwala resident of Dwarikadhish Mandir Lane, 4th Cross, Dr. Rajendra Prasad Road, Bhagalpur, P.S. Kotwali, Bhagalpur – 812002, Bihar Versus 1. Union of India, Ministry of Corporate Affairs, through the Registrar of Companies, Bihar and Jharkhand. 2. The Registrar of Companies, Bihar and Jharkhand, Maurya Lok Complex, A Block, Fourth Floor, Dakbunglow Road, Patna, Bihar. ----------- For the Appellant : M/S. Surendra Singh, Arun Kumar Singh No. 4. For the Respondents : Mr. Sanjiv Kumar ------- 2 26/02/2009 The petitioner-appellant has preferred this appeal, aggrieved by the order dated 11.12.2008 passed by the Company Judge in Company Petition No. 8 of 2008. The short facts, giving rise to the present appeal, are that the appellant is a Company registered under the Companies Act. On account of failure to file returns for seven consecutive years, the name of the appellant Company was struck off from the register in the light of section 560(5) of the Companies Act, 1956. Aggrieved by the same, the appellant earlier filed Company Petition No. 3 of 2008. By order dated 15.5.2008 the Company Judge rejected the said petition and while doing so observed as follows : “For failure to file returns for seven consecutive years, the name of the petitioner Company has been struck off by the Registrar of Companies by resorting to the provisions contained in Section 560(5) of the Companies Act, 1956 on 31.7.2007 and the said Company has already been dissolved. I do not see any good reason to interfere with the impugned order and this application is, accordingly, rejected.” - 2 - Aggrieved by the same, the appellant preferred Company Appeal No. 9 of 2008 (Vijay Laxmi Niketan Private Ltd. Vs. The Union Of India & another) before this Court. When the matter was taken up on 18th September, 2008, the appellant sought permission to withdraw the appeal which was granted and while doing so the Division Bench observed as follows : “Mr. Surendra Singh, counsel for the appellant prays for withdrawal of this appeal with liberty to the appellant to apply to the Registrar of Companies, under section 611(2) for condonation of delay and for restoration of re-registration of the appellant-company in the register by filing requisite additional fee. Appeal is allowed to be withdrawn with liberty, as prayed. We clarify that our 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 publication of notification in official gazette, if otherwise, the Registrar of Companies does not have any such power in law.” In the light thereof the appellant filed application for restoration of its name in the register but the Registrar of the Companies vide its communication dated 3.10.2008 (annexure- 5) informed the appellant that it has no power to condone the delay and for restoration of the Company under section 560(6) of the Companies Act and that power vests with this Court. The appellant challenged the aforesaid order in a fresh Company petition which has been dismissed by the impugned order. In the Company petition the appellant attempted to challenge the earlier notification dated 18.8.2007, which did not find favour with the Company Judge. Mr. Arun Kumar Singh appearing on behalf of the appellant submits that the Registrar of Companies did not err in observing that it - 3 - has no power to condone the delay and restore the name of the Company in the register. However, he contends that striking off the name of the appellant Company vide notification published in the gazette on 18th August, 2007 is bad in law. We are afraid, in the present proceeding it is not permissible for us to go into its validity. As observed earlier, the appellant attempted to challenge the aforesaid gazette notification in Company Petition No. 3 of 2008 which was rejected by order dated 15.5.2008. The appeal preferred against the aforesaid order has been withdrawn. Thus, the order as contained in gazette notification dated 18.8.2007 has become final and its validity is not fit to be gone into in the present proceeding. We do not find any merit in this appeal. It is dismissed in limine. (C. K. Prasad, ACJ.) (Dharnidhar Jha, J.) AMIN