Delhi High Court
Kamala Chamoli & Anr vs M/S Pre Press Machinery & Services ... on 29 November, 2019
$~5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 29th November, 2019
+ CM (M) 25/2018
KAMALA CHAMOLI & ANR ..... Petitioners
Through: Mr. Syed Hasan and Mr. Parvez
Zaidi, Advocates. (M: 9990067910)
versus
M/S PRE PRESS MACHINERY & SERVICES PVT
LTD ..... Respondent
Through: None.
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J(oral)
1. Pursuant to the order dated 12th July, 2019, ld. counsel for the
Petitioners has placed on record a detailed affidavit of facts. In the said
affidavit, along with all the facts, the RTI Reply dated 5th February, 2019,
issued by the Ministry of Corporate Affairs, Office of the Registrar of
Companies, has been attached, which shows that the name of the
Respondent/Plaintiff (hereinafter, "Plaintiff") company was struck off
under Section 560 (5) of the Companies Act, 1956, under the Easy Exit
Scheme, 2011 on 18th March, 2011.
2. Ld. counsel for the Petitioners submits that the suit for recovery under
Order XXXVII CPC was filed by the Plaintiff, seeking recovery against
M/s. `Kalp Taru Scan & Print Media', of which the sole proprietor was Mr.
Ramesh Chamoli. During the pendency of the suit, which was filed on 28th
October, 2010, Mr. Ramesh Chamoli passed away. Thereafter, his legal
heirs - Ms. Kamala Chamoli and Mr. Sudhanshu Chamoli were impleaded.
The order of impleadment dated 5th December, 2017, is under challenge in
the present petition.
3. During the pendency of the present petition, it had come to the
knowledge of the Petitioners that the name of the company itself was struck
off from the register of companies and hence, the Petitioners had sought
leave to place the said facts on record. Today, ld. counsel for the Petitioners
has pointed out the relevant documents and facts from the record of the
Executing Court.
4. It is clear from a perusal of the RTI reply dated 5th February, 2019,
that the name of the company has been struck off on 18 th March, 2011.
However, strangely, the said fact was not disclosed by the Plaintiff-company
before the ld. Trial Court. The suit has proceeded further on several dates,
for example, on 9th May, 2011, 19th July, 2011 and 28th July, 2011 and
thereafter, without a whisper of the said fact. On 11th February, 2014,
conditional leave was granted and the suit was directed to proceed as an
ordinary suit. Clearly, the Plaintiff appears to have been misleading the ld.
Trial Court by not disclosing to the Court that its name stood struck off from
the register of companies. Section 560 of the Companies Act, 1956 reads as
under:
"560. Power of Registrar to strike defunct company off
register. - (1) Where the Registrar has reasonable cause
to believe that a company is not carrying on business or
in operation, he shall send to the company by post a
letter inquiring whether the company is carrying on
business or in operation.
(2) If the Registrar does not within one month of
sending the letter receive any answer thereto, he shall,
within fourteen days after the expiry of the month, send to
the company by post a registered letter referring to the
first letter, and stating that no answer thereto has been
received and that, if an answer is not received to the
second letter within one month from the date thereof, a
notice will be published in the Official Gazette with a
view to striking the name of the company off the register.
(3) If the Registrar either receives an answer from the
company to the effect that it is not carrying on business
or in operation, or does not within one month after
sending the second letter receive any answer, he may
publish in the Official Gazette, and send to the company
by registered post, a notice that, at the expiration of three
months from the date of that notice, the name of the
company mentioned therein will, unless cause is shown to
the contrary, be struck off the register and the company
will be dissolved.
(4) If, in any case where a company is being wound
up, the Registrar has reasonable cause to believe either
that no liquidator is acting, or that the affairs of the
company have been completely wound up, and any
returns required to be made by the liquidator have not
been made for a period of six consecutive months, the
Registrar shall publish in the Official Gazette and send to
the company or the liquidator, if any, a like notice as is
provided in sub-section (3).
(5) At the expiry of the time mentioned in the notice
referred to in sub-section (3) or (4), the Registrar may,
unless cause to the contrary is previously shown by the
company, strike its name off the register, and shall
publish notice thereof in the Official Gazette; and on the
publication in the Official Gazette of this notice, the
company shall stand dissolved:
Provided that -
(a) the liability, if any, of every director, 1 [***]
manager or other officer who was exercising any
power or management, and of every member of the
company, shall continue and may be enforced as if the
company had not been dissolved; and
(b) nothing in this sub-section shall affect the power
of the Court to wind up a company the name of which
has been struck off the register.
(6) If a company, or any member or creditor thereof,
feels aggrieved by the company having been struck off
the register, the 2 [Tribunal], on an application made by
the company, member or creditor before the expiry of
twenty years from the publication in the Official Gazette
of the notice aforesaid, may, if satisfied that the company
was, at the time of the striking off, carrying on business
or in operation or otherwise that it is just that the
company be restored to the register, order the name of
the company to be restored to the register; and the 2
[Tribunal] may, by the order, give such directions and
make such provisions as seem just for placing the
company and all other persons in the same position as
nearly as may be as if the name of the company had not
been struck off.
(7) Upon a certified copy of the order under sub-
section (6) being delivered to the Registrar for
registration, the company shall be deemed to have
continued in existence as if its name had not been struck
off.
(8) A letter or notice to be sent under this section to a
company may be addressed to the company at its
registered office, or if no office has been registered, to
the care of some director, 1 [***] manager or other
officer of the company, or if there is no director, 3 [***]
manager or officer of the company whose name and
address are known to the Registrar, may be sent to each
of the persons who subscribed the memorandum,
addressed to him at the address mentioned in the
memorandum.
(9) A notice to be sent under this section to a
liquidator may be addressed to the liquidator at his last
known place of business."
5. A perusal of the above provision shows that once the name of the
Company has been struck off, only the liability of the Director, the
Managing Agent, the Secretaries and other officers who are exercising any
powers of management of the company would continue, however, the
company itself would stand dissolved. Thus, once the company stands
dissolved, there would be no reason not to disclose this fact and to continue
to proceed with the suit, especially against the legal heirs of the deceased,
whose responsibility for liabilities, if any, of the sole proprietary concern, is
itself questionable.
6. The Plaintiff-company was served in the present petition and ld.
counsel had appeared on behalf of the company on 10th April, 2019,
however, the ld. counsel has stopped appearing before this Court. The last
order in the ld. Trial Court is of 25th April, 2018, on which date the matter
has been adjourned to 4th September, 2018. Clearly, the Plaintiff is aware of
the pendency of the present petition and has chosen to appear. It is
accordingly held that the suit cannot proceed in these circumstances as the
right to sue no longer survives and the suit, accordingly, stands dismissed.
7. The petition is allowed in the above terms. The Trial Court record be
sent back, along with a copy of this order.
8. With these observations, the petition and all pending applications are
disposed of.
PRATHIBA M. SINGH
JUDGE
NOVEMBER 29, 2019
dj
