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2017 (7) TMI 825 - Tri - Companies LawRestoration of name of the Company in the Register of Companies - Held that - The Petitioner Company has not complied with filing of the statutory returns, namely annual returns and balance sheet of the Company from the year 2000 to 2012, and in the circumstances was directed to comply with filing of the statutory returns/documents. The order imposed cost of ₹ 20,000 payable to the Central Government within 6 weeks. It is another matter that even the said directions have not been complied with. However, the above order cannot condone the consequences of non-compliance of provisions under Section 3 of the Companies Act, 1956 in relation to the maintenance of statutory minimum paid up capital of the Company being the private limited company at ₹ 1.00 lakhs (Rupees one lakh). Obviously, the provisions of the above Sections namely 3(3) and 3(5) of the Companies Act, 1956 have not been taken note of while rendering the above order dated 12.7.2013 by the Hon ble High Court and as rightly contended by the Ld. Representative of ROC that the order dated 12.7.2013 is required to be considered as per incuriam . The provisions of Section 3(3)and Section 3 (5) of the Companies Act, 1956 has not been taken note of at the time of rendering the order on 12.7.2013 making the order Hon ble High Court per incuriam. It is a classical case where substantive statutory provisions have escaped notice of the High Court which direct material effect on the issue raised. Therefore, such an order attracts the title of per incuriam . Therefore, we do not find any justifiable reason to condone the above lapse of the Petitioner Company and neither the same has been prayed for. In the circumstances, we do not find any infirmity in the action of the Respondent-ROC in striking off the name of the Company from the register of companies and hence this Petition is dismissed with cost of ₹ 10,000/- payable by the Petitioner to the Respondent within a period of two weeks from the date of its order.
Issues Involved:
1. Restoration of the company's name in the register of companies. 2. Compliance with statutory requirements, including filing of annual returns and enhancement of paid-up capital. 3. Validity of the second striking off of the company's name. 4. Interpretation and application of Sections 3(3) and 3(5) of the Companies Act, 1956. Issue-wise Detailed Analysis: 1. Restoration of the Company's Name in the Register of Companies: The petitioner sought the restoration of its name, Akash Ganga Builders Private Limited, which was struck off from the register of companies. The company was initially struck off in 2008 due to non-filing of statutory returns and non-enhancement of the minimum paid-up capital. The petitioner filed a petition under Section 560(6) of the Companies Act, 1956, before the Hon'ble High Court of Delhi, which ordered the restoration of the company's name in 2013, subject to certain conditions, including the payment of costs and filing of statutory documents. 2. Compliance with Statutory Requirements: The petitioner company failed to file its annual returns and balance sheets from 2000 to 2012. Despite the High Court's order in 2013, the company only filed the balance sheet for the year 2013. The paid-up capital as on 31.3.2012 was ?20, which was below the statutory minimum of ?1 lakh. The company increased its paid-up capital to ?1,50,020 only during the year 2012-13, which indicated non-compliance with the statutory requirement for the years 2000-2011. 3. Validity of the Second Striking Off: The respondent struck off the company's name again in 2015, citing non-enhancement of the minimum paid-up capital and non-compliance with the High Court's order. The petitioner contended that the company could not be struck off twice for the same reason, especially after complying with the High Court's order. However, the respondent argued that the company failed to comply with the statutory requirements and the High Court's directions, justifying the second striking off. 4. Interpretation and Application of Sections 3(3) and 3(5) of the Companies Act, 1956: The tribunal examined Sections 3(3) and 3(5) of the Companies Act, 1956, which mandate that a private company must enhance its paid-up capital to ?1 lakh within two years from the commencement of the Companies (Amendment) Act, 2000. Failure to do so would result in the company being deemed defunct and its name being struck off. The tribunal found that the High Court's order did not consider these provisions, making the order 'per incuriam' (given in ignorance of the law). The tribunal concluded that the respondent was statutorily obliged to strike off the company's name due to non-compliance with these provisions. Conclusion: The tribunal dismissed the petition, upholding the respondent's action of striking off the company's name from the register of companies. It imposed a cost of ?10,000 on the petitioner, payable to the respondent within two weeks. The tribunal emphasized that the statutory requirements under Sections 3(3) and 3(5) of the Companies Act, 1956, were not met, justifying the respondent's action.
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