2017 (6) TMI 88 - AT - Companies Law

Restoration of the name of the petitioner company in the Registrar of Companies - Held that - The attitude of the Registrar of Companies in not substantiating the averments about the service of notice as mandatorily required under the provisions of Companies Act, 1956 before striking out and dissolving the company is also required to be seriously deprecated the onus of proving that in fact, the notice as contemplated under the provisions of Section 560 (1) and 560 (2) of the Act lies with the respondent and the same cannot be done without the issue of the requisite statutory notices and in case of its service in considering its reply if any given within the mandated period by the Registrar of Companies like the petitioner company. It is another matter if the notice has been served requiring the petitioner company to show cause and despite the same, the petitioner company has failed and neglected to respond. However, that is not the case here. Taking into consideration the above aspects and in view of the petitioner demonstrating that as of today, the company is a running company and that it will be seriously prejudiced if not restored in the register of Registrar of Companies, the petition is allowed subject to following conditions, namely, the petitioner company shall - (a) subsequent to a month of the restoration of the petitioner company s name in the register maintained by the Registrar of Companies, the petitioner will file its annual returns and Balance Sheets for the period from which there has been a default including for the period from 01.04.2000 onwards along with requisite charges/fees as well as additional fee /late charges. (b) that an affidavit of compliances of the aforesaid directions be filed by the petitioner and the other directions given hereunder within a period of 3 months from the date of this order. (c) that the petitioner company out of its reserve/cash and bank balance set apart a sum of ₹ 5 lakhs and deposit the same with the respondent to defray costs and expenses within a period of 2 months from the date of this order. (d) till all compliances are made by the petitioner company, the petitioner company shall not alienate or dispose off any of its valuable assets and the Directors shall not hold out that they all are representing the company and authorized to do so in relation to such disposal.

Summary

Issues:
Restoration of company name in Registrar of Companies under Section 560(6) of the Companies Act, 1956.

Analysis:
The petitioner filed a petition seeking restoration of their company's name in the Registrar of Companies. The company was incorporated in 1996 and faced financial difficulties despite having a viable business. The petitioner claimed that the company's assets remained intact, and it was not defunct. The Registrar of Companies had struck off the company's name for non-compliance without giving the mandatory three months notice as required by law. The respondent argued that the company had not filed statutory documents as per the Companies Act, leading to the name being struck off after due notice. The respondent expressed willingness to restore the name of the company upon filing of necessary documents and fees. The petitioner submitted a rejoinder citing the illness of a key personnel as a reason for non-compliance and provided financial statements showing assets and minimal liabilities.

The Tribunal noted the petitioner's consistent non-compliance with statutory requirements under the Companies Act. Despite one director's illness, the company failed to fulfill its obligations. The Registrar's failure to substantiate the service of mandatory notices before striking off the name was criticized. The Tribunal held that the onus of proving notice issuance lay with the respondent. Considering the company's current operational status and potential prejudice if not restored, the petition was allowed with conditions. The company was directed to file pending annual returns and balance sheets, deposit a specified amount, and refrain from asset disposal until compliance. The conditions were deemed just under the circumstances, and the petition was disposed of accordingly.