2020 (11) TMI 295 - Tri - Companies Law

Restoration of the name of the company on the registrar of companies maintained by the ROC Mumbai - company is registred as a LLP - section 252 of the Companies Act, 2013 - HELD THAT - It is pertinent to note that the definition of company under Section 2(20) of the Companies Act, 2013, means a company incorporated under this act or under any previous company law. If we look at the definition of Previous Company law under sec 2(60), Previous Company law means and include Companies act 1956. Further it is seen that the LLP Act was enacted in the year 2008, before the introduction of Companies Act 2013. However, in the year 2010 the notification dated 06.01.2010 expressly declared that the provision of Companies Act 1956 more particularly section 560 of the Companies Act would be applicable to any LLP under LLP Act, 2008 - There is no provision of restoration of stuck off company under the LLP Act, 2008 and therefore we need to seek restoration of the company under the erstwhile section 560 of the companies act, 1956 and more particularly in view of the definition of the company of section 2(20) which includes the previous company law as well. This Bench is of the opinion that in the absence of any relevant provision of restoration of struck off LLP under the LLP Act 2008, the law maker has made provisions to bridge the gap and as such a declaration under section 67 of the Companies Act which expressly provided that section 560 of the Companies Act, was made applicable to LLP Act and in view of the declaration of Central Government on 6.01.2010, LLP could be restored under the erstwhile Companies Act, 1956. Therefore applying the same analogy that under the Companies Act 2013, the legislature intended to include previous company law in the definition of Company under Sec 2(20), which categorically includes Companies Act 1956. We conclude that provisions of Sec 560 of Companies Act 1956 are akin to the provisions of section 252 of the Companies Act 2013, therefore LLPs which was struck off under section 75 of the LLP Act, 2008 shall be restored under Sec. 252 of Companies Act 2013. The appeal filed by the appellant under section 252(3) of the Companies Act, 2013 is allowed r/w 11 of the NCLT rules, 2016.

Summary

Issues:
1. Restoration of company name on the registrar of companies.
2. Applicability of Companies Act 1956 and Companies Act 2013 to Limited Liability Partnerships (LLPs).
3. Restoration of LLP struck off under section 75 of the LLP Act, 2008 under section 252 of the Companies Act, 2013.

Analysis:
1. The appellant company filed a petition seeking restoration of its name on the registrar of companies due to defaults in compliances, leading to its strike off by the ROC Mumbai. The company maintained it was active since incorporation and had engaged a Company Secretary for filing returns, but did not receive a show cause notice before being struck off.

2. The ROC contended that the petition was filed under incorrect provisions as the LLP was governed by the LLP Act, 2008, not the Companies Act, 2013. The ROC highlighted the non-compliance of statutory requirements by the appellant company, leading to the strike off under section 75 of the LLP Act, 2008.

3. The Tribunal analyzed the provisions of the Companies Act, 1956 and 2013 in relation to LLPs. It noted that the Central Government had declared the applicability of section 560 of the Companies Act, 1956 to LLPs through a notification. This allowed for the restoration of struck off companies under section 560. The Tribunal emphasized that the Companies Act, 2013 continued to apply certain provisions of the Companies Act, 1956, including section 560, until relevant notifications were issued.

4. The Tribunal concluded that in the absence of a specific provision for restoration of struck off LLPs under the LLP Act, 2008, the provisions of the Companies Act, 1956 could be relied upon. It held that section 252 of the Companies Act, 2013 could be applied to restore LLPs struck off under section 75 of the LLP Act, 2008. The appeal by the appellant under section 252(3) of the Companies Act, 2013 was allowed, providing the remedy for restoration of the LLP.