2018 (7) TMI 2337 - HC - Companies Law

Seeking restoration of name of the company in the Register of companies - Sections 248 and 455 of the Companies Act, 2013 - HELD THAT - The respondents are restrained from acting any further on the basis of the notice dated 1st June, 2018 being Annexure P2 at page 65A of the writ petition without the leave of this Court. The interim order passed shall be operative for a period of six weeks or until further orders whichever is earlier. Let this matter appear for hearing four weeks hence.

Summary

Issues:
Challenge to notice invoking power under Companies Act, 2013 - Contrary to Section 455 - Contrary to Rules - Stay of operation of notice - Format of notice - Affidavit-in-opposition - Hearing schedule - Interim order duration.

Analysis:
1. The writ petition challenges a notice issued by the Registrar of Companies, West Bengal, invoking power under the Companies Act, 2013, specifically Sections 248 and 455. The notice intended to remove the name of the company from the Register of Companies directly, which prima facie appears contrary to the provisions of Section 455, which primarily deals with registering a company as dormant if annual returns are not furnished consecutively for two years.

2. The petitioner's counsel argues that the notice issued does not comply with the requirements of Rule (3) of the Companies (Removal of Names of Companies from the Register of Companies) Rule, 2016. Sub Rule (2) of the said rule mandates that a notice in writing in form STK 1 should be sent to all directors of the company, which was not followed in this case. The counsel presented a printout of the form STK 1, indicating a discrepancy with the notice under challenge.

3. The Court finds that the authority did not adhere to the rules and Section 455 of the Companies Act, 2013. Consequently, an order of stay of operation of the notice is passed, restraining the respondents from taking further action based on the notice dated 1st June, 2018, without the Court's permission.

4. The Registrar of Companies contends that the difference in format between the notice and the form STK 1 is a technical matter with no substantial impact. The Court allows the submission of an affidavit-in-opposition within two weeks, followed by an affidavit-in-reply by the petitioner within the subsequent two weeks. The matter is scheduled for a hearing four weeks later.

5. In light of the Court's findings, the respondents are prohibited from proceeding with the notice dated 1st June, 2018, without the Court's permission. The interim order is effective for six weeks or until further orders are issued, whichever is earlier.