2015 (5) TMI 765 - HC - Companies Law

Application under Section 560(6) of the Companies Act, 1956 for restoration of name - Name stuck off due to non-filing of Annual Returns - Initiation of proceedings under Section 560 of the Companies Act, 1956 - Primary responsibility for ensuring that proper returns and other statutory documents are filed, in terms of the statute and the rules, remains that of the management - Held that - It has been averred on behalf of the respondent that though the notices/letters under S.560(1) and (3) were sent, their copies and dispatch proof are not traceable. It is pertinent to note here that since per the petitioner s enquiries and inspection of its official record the updated address of the registered office of the petitioner-company was not reflected in the records of the respondent; and further, in absence of any submission and/or documents to the contrary, it is entirely possible that the respondent had sent notices under S.560 to the petitioner on the old address of its registered office and the same may not have been received by the petitioner. Under the facts and circumstances, it is possible that notice in respect of action under S.560 of the Companies Act, 1956, was not sent to the registered office of the company. Consequently, the condition precedent for the initiation of proceedings to strike off the name of petitioner from the Register maintained by the respondent, was not satisfied. And looking to the fact that the petitioner is stated to be a running company; and that it has filed this petition within the stipulated limitation period; and also to the decision of the Bombay High Court in Purushottamdass and Anr. (Bulakidas Mohta Co. P. Ltd.) 1984 (4) TMI 247 - HIGH COURT OF BOMBAY , it is only proper that the impugned order of the respondent dated 23.06.2007, which struck off the name of the petitioner from the Register of Companies, be set aside. At the same time, however, there is no gainsaying the fact that a greater degree of care was certainly required from the petitioner company in ensuring statutory compliances. Accordingly, the petition is allowed. The restoration of the company s name to the Register maintained by the Registrar of Companies will be subject to payment of costs of ₹ 22,000/- to be paid to the common pool fund of the Official Liquidator, within three weeks; and on completion of all formalities, including payment of any late fee or any other charges which are leviable by the respondent for the late deposit of statutory documents. The name of the petitioner company, its directors and members shall, as a consequence, stand restored to the Register of the respondent, as if the name of the company had not been struck off, in accordance with S.560(6) of the Companies Act, 1956. - Application for restoration of company name approved.

Summary

Issues:
1. Restoration of company's name in the register of companies under Section 560(6) of the Companies Act, 1956.

Analysis:
The petitioner, Pancham Hotels Pvt. Ltd., filed a petition seeking restoration of its name in the register of companies after the respondent initiated proceedings to strike off the name due to defaults in statutory compliances, specifically non-filing of Annual Returns and Balance Sheets from 1998 to 2014. The respondent followed the procedure under Section 560, sending notices as required. The petitioner argued that it had been functioning, carrying on business, and filing necessary documentation with authorities, presenting annual accounts, balance sheets, and tax returns as evidence. The petitioner claimed it did not receive required notices and was not given an opportunity to be heard before the name was struck off. The petitioner also highlighted discrepancies in the records regarding the registered office address change and lack of documents supporting the decision to strike off the name.

The court noted that the petitioner had changed its registered office address and filed the necessary form notifying the change. The petitioner explained challenges faced in filing balance sheets due to constraints and market conditions. The petitioner only became aware of its name being struck off in 2014 when unable to upload documents, indicating a lack of communication regarding the status. The respondent acknowledged difficulties in tracing copies of sent notices, raising the possibility that notices were sent to an outdated address. The respondent expressed no objection to restoration, subject to the petitioner fulfilling all statutory requirements and fees.

Referring to previous judgments, the court emphasized the purpose of Section 560(6) to provide an opportunity for revival within 20 years if restoration is deemed necessary in the interest of justice. Considering the circumstances, including the lack of notice sent to the correct address and the petitioner being an operational company, the court set aside the order striking off the name. However, the court stressed the importance of statutory compliances and management responsibilities, directing the petitioner to pay costs, complete formalities, and restore the name in the register. The respondent was granted liberty to take penal action for alleged non-compliance with the Companies Act. Ultimately, the petition was allowed, and the company's name was restored to the register with specified conditions.