TaxTMI 
TaxTMI 
2017 (5) TMI 995
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....e name of the company was struck off from the register of the companies under Section 560 of the Companies Act, 1956. An application under Section 560(6) of the said Act was filed by one Suresh Agarwal claiming to be the Director of the said company for restoration of the name of the said company to the register. It is stated in the said petition that there has been a default in filing the annual return and balance sheet since 31st March, 2006 up to 31st March, 2012 and the moment it was brought to the notice of the said company, it was detected that the company's name has already been struck off from the portal of the Ministry of Corporate Affairs, Government of India. It is further stated that though the company was active and doing business activities but the annual returns and the balance sheets could not be filed. The delay in filing those statutory documents occurred because of the company's accountant, who was responsible therefor and failed to carry out his duties. The said petition appeared on 12th August, 2013 and the learned Advocate appearing for the Registrar of Companies filed the statements indicating the filing fees, additional filing fees and the penalty which the....
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....present applicants have addressed this Court on the factual matrix but the matter took turn when the preliminary objection was taken by the learned Advocate appearing for the said Director that this Court had no jurisdiction to entertain the present application in view of Rule 3 of Companies (Transfer of Pending Proceedings) Rules, 2016, which came into effect on and from 15th December, 2016. This Court therefore permitted the respective counsels to address the said point first as it strikes at the root of the matter. It is submitted by the learned Advocate appearing for the Director that by virtue of Rule 3 of the said Rules all proceedings including the proceedings relating to arbitration, compromise, arrangements and reconstruction except the proceeding relating to winding up shall stand transferred to the Benches of the National Company Law Tribunal (NCLT) constituted under Section 408 of the Companies Act, 2013. It is further submitted that proviso appended thereto kept those proceedings, which are reserved for orders for allowing or otherwise outside the purview of the enabling Rule. It is, thus submitted that the instant application for recalling the order by which the Comp....
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....urt on the date of coming into force of the said Act. By virtue of the aforesaid Rules all proceedings under the said Act shall stand transferred to the Benches of the NCLT exercising respective jurisdiction. The proviso inserted in Rule 3 of the said Rules kept certain proceedings outside the purview of such transfer if those are reserved for orders for allowing or otherwise. Admittedly, a Company Petition under Section 560(6) of the Companies Act, 1956 was filed before this Court and was disposed of by ordering resurrection of the company in the register maintained by the Ministry of Corporate Affairs. The first and foremost point which this Court feels required to be considered is the meaning of the "proceeding" in juxtaposition with the aforesaid Rule. Ordinarily, the 'proceeding' is used to express the business done in Courts. It is more comprehensive than the word 'action' and may imbibe in its general sense all steps taken or measures adopted in an action between the period from the date of filing of pleading and the judgment. In other words, it relates to a form of law to the modes in which the judicial transactions are conducted. Generally speaking the 'proceeding' means ....
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.... in another way; in any other way; differently in other respects in different respects; in some other like capacity." 25. "Otherwise" is defined by Standard Dictionary as meaning "in a different manner; in another way; differently in other respects"; by Webster, "in a different way or manner; in other respects". 26. As a general rule, "otherwise" when following an enumeration, should receive an ejusdem generis interpretation (per Cleasby, B. Monck v. Hilton [(1877) 46 LJMC 163] .) The words "or otherwise", in law, when used as a general phrase following an enumeration of particulars, are commonly interpreted in a restricted sense, as referring to such other matters as are kindred to the classes before mentioned (Cent. Dict.). 27. It is now a well-settled principle of law that a statute should ordinarily be given a purposive construction. (See New India Assurance Co. Ltd. v. Nusli Neville Wadia [(2008) 3 SCC 279 : (2007) 14 Scale 556] ; Tanna & Modi v. CIT [(2007) 7 SCC 434 : (2007) 8 Scale 511] and Udai Singh Dagar v. Union of India [(2007) 10 SCC 306 : (2007) 7 Scale 278] .)" The aforesaid interpretation was accepted and applied by the Supreme Court in a subsequent deci....
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....otherwise pending as on this date and therefore the application for recalling the order cannot come within the purview of Rule 3 of the said Rules. The power of recalling the order is a vested power upon the Company Court and emanates from Rule 9 of the Company Court Rules. it originates and / or arise from the original proceeding and there was no intention of the legislature to include such applications within the periphery of Rule 3 thereof. This Court therefore does not find any substance in the preliminary objection raised by the Director of the company and is therefore answered in negative. This beings us to the merit of the application and it is required to be seen whether the order was obtained by suppressing the material facts and by committing fraud on the Court. The application for restoration of the company in the register contains the simplicitor statements that the company was active but because of the person responsible for filing the annual return and the balance sheet, the same could not be filed. In the instant petition, the present applicants disclosed that the company applied for voluntary winding up under EES (Easy Exit Scheme)-2011 before the Registrar of Compa....