TaxTMI 
TaxTMI 
2023 (6) TMI 1468
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....i Raghu Nath Ghei, father of the Appellant and Respondent No.2 was a director and shareholder of the Respondent No.3 Company holding 3,680 shares out of total 8,003 shares issued in respect of the company. The Appellant has further stated that Shri Raghu Nath Ghei passed away on 15.10.2001, whereafter his wife Smt. Raj Ghei and Respondent No.2-Mr. Sanjeev Ghei remained the two directors of the Respondent No.3 Company. He has further stated that the last Balance Sheet and Annual Return of Respondent No.3 were filed in the year FY 2004-05, and thereafter no statutory compliance was done by the Respondent No.3 Company. He has further stated that Respondent No.2- Mr. Sanjeev Ghei siphoned off a huge amount from the Company's account between the years 2006-2009 and in the year 2009 Smt. Raj Ghei Director and Shareholder, passed away intestate. He has further stated that Respondent No.2 continued to close bank accounts of the company and siphoned off the amounts therein to newly opened bank accounts, and on 19.08.2010 Respondent No.2 filed an application with Respondent No.1 - Registrar of Companies, New Delhi for removing the name of the Respondent No.3 Company from the Register of Comp....
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.... Mawkin as a director of Respondent No.3 Company w.e.f. 30.06.2009. 6. The Learned Counsel for the Appellant has further submitted that between the years 2006 and 2010, Mr. Sanjeev Ghei siphoned off Rs. 185 lakhs from Respondent No.3 Company and between 01.10.2009 to 18.08.2010, he further siphoned off Rs. 122 lakhs from the bank account of Respondent No.3 Company which is misappropriation of funds by the Respondent No.2. He has referred to details of the transfer of funds of Respondent No.3 company by Mr. Sanjeev Ghei which are provided in detail in the appeal memo. He has further argued that after misappropriating the funds and assets of the Respondent No.3 Company, Mr. Sanjeev Ghei filed an application under the Easy Exit Scheme, 2010 with fabricated documents for striking off the name of the Respondent No.3 Company from the Register of Companies, which clearly shows his nefarious intention. He has further argued that Mr. Sanjeev Ghei also fabricated the books of account of Respondent No.3 company and evaded income tax, in which connection, the Income Tax department filed a Writ Petition against Mr. Sanjeev Ghei for reassessment of Income Tax Returns of Respondent No.3 Compan....
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....ondent No.2 has further argued that the Appellant is not a member of the R-3 company nor a creditor and, therefore, he is not entitled to file any appeal under Section 560(6) of the Companies Act, 1956. He has further referred to Section 41 of the Companies Act, 1956 to bring to our attention the definition of a "Member" of the company to emphasise that since the Appellant is not a member of the company it is not entitled to maintain the appeal. 11. The Learned Counsel for Respondent No.2 has further referred to the judgments of the Hon'ble Bombay High Court rendered in Killick Nixon Ltd. Vs. Bank of India, 1982 SCC Online Bom 57, and of the Hon'ble Supreme Court in Howrah Trading Co. Vs. I.T Commissioner, A.I.R 1959 S.C 775 and in Balkrishan Gupta Vs. Swadeshi Polytex Ltd., (1985) 2 SCC 167, wherein it is held that the member is a shareholder, whose name is recorded in the company's register and only such a person can claim privileges of a member and exercise his rights relating to such privileges. He has argued that the Appellant is neither a member of the company whose name is entered in the Register of Companies as a shareholder, nor a creditor and therefore, he does not hav....
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....hould have happened. There is no evidence produced by the Appellant that he made any effort for the transfer of shares which were ostensibly inherited by him, in his name. Later, admittedly an application was filed by Mr. Sanjeev Ghei with the ROC for striking off the name of the Company under the Easy Exit Scheme, 2010 which was approved by the RoC with the order No. 506 dated 27.12.2010 and later, the Gazette Notification of this order was published in the Official Gazette on 19.03.2011. It is also noted that a suit of partition was filed in the year 2011 before the Court of Civil Judge, Gurgaon and there is no final order in the partition suit yet. In the light of these facts we are of the view that the Appellant is not a 'Member' or 'Creditor' of Respondent No.3 Company. 15. We note that Section 41 of the Companies act, 1956 defines member of a Company as follows: "Section 41 in The Companies Act, 1956 Definition of" member". (1) The subscribers of the memorandum of a company shall be deemed to have agreed to become members of the company, and on its registration, shall be entered as members in its register of members. (2) Every other pers....
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....ired 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 2 [Tribunal] 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....