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2019 (12) TMI 243 - Tri - Companies LawRevival of company and restoration of company's name in the Registrar of Companies - Seeking relief to make the bank account operational - HELD THAT - The appellant preferred this appeal being a Liquidator of the deregistered company. Hence, he is competent for filing the same, to seek restoration of the company's name in the register of the ROC. By perusal of the material available on record it is evident that the main reason shown for striking off the name of the Company, i.e. M/S. J. R. Diamonds Pvt. Ltd. was that the deregistered company had failed in filing its statutory returns (e.g. Balance Sheets, Annual Returns) before the ROC. However, when the order impugned for striking off the name of the company was passed, the company was under the C.I.R.P. and thereafter gone into liquidation process by an order dated 01.10.2018 of the NCLT passed under Section 33 of the I.B. Code. Hence, the liquidator took over the charge of the assets of the Corporate-Debtor-Company (now under deregistration). Hence such impugned action cannot be treated a legally valid and just action on the part of ROC to strike off the name of the Company during Corporate Interim Resolution Process, which is reported to have pending litigation. The impugned order dated 06.08.2018 to strike off the name of the company, so far as it relates to the present company is set aside - the present Company Appeal deserves to be allowed and the name of the company, i.e. M/S. J. R. Diamonds Pvt. Ltd. to be restored in the statutory register of Companies being maintained by the Respondent, ROC, Gujarat for above mentioned limited purpose - the present appeal is conditionally allowed.
Issues Involved:
1. Restoration of the company's name in the statutory register. 2. Compliance with Section 252 of the Companies Act, 2013. 3. Validity of the ROC's action during the Corporate Interim Resolution Process (CIRP). 4. Legal implications of the moratorium under Section 14 of the I.B. Code. 5. Overriding effect of Section 238 of the I.B. Code. 6. Conditions for restoring the company's name. Issue-wise Detailed Analysis: 1. Restoration of the company's name in the statutory register: The appeal was filed by the Liquidator of M/S. J. R. Diamonds Pvt. Ltd. seeking restoration of the company's name, which was struck off by the Registrar of Companies (ROC), Gujarat on 06.08.2018. The Liquidator contended that the company had assets and pending litigation, which necessitated its name to remain on the register. 2. Compliance with Section 252 of the Companies Act, 2013: The Tribunal examined Section 252(1) and 252(3) of the Companies Act, 2013, which allows aggrieved persons to appeal against the ROC's order within three years. The Tribunal found that the appeal was filed within the permissible period and that the removal of the company's name was not justified as it had ongoing business operations and litigation. 3. Validity of the ROC's action during the Corporate Interim Resolution Process (CIRP): The Tribunal noted that the CIRP for the company commenced on 13.02.2018, and a moratorium was declared under Section 14 of the I.B. Code. During this period, no legal proceedings could be initiated against the company. The ROC's action to strike off the company's name during this moratorium was deemed legally invalid. 4. Legal implications of the moratorium under Section 14 of the I.B. Code: Section 14 prohibits the initiation of suits or proceedings against the corporate debtor during the CIRP. The Tribunal emphasized that the ROC's action violated this provision, as the company was under moratorium protection when its name was struck off. 5. Overriding effect of Section 238 of the I.B. Code: Section 238 of the I.B. Code states that the provisions of the Code shall prevail over any other law. The Tribunal held that the ROC's action was void due to the overriding effect of the I.B. Code, reinforcing that the company's name should not have been struck off during the CIRP. 6. Conditions for restoring the company's name: The Tribunal allowed the appeal conditionally, directing the ROC to restore the company's name subject to the following conditions: - The Liquidator must file all overdue statutory returns with the required fees and penalties within 90 days. - A notice of the restoration must be published in leading newspapers and the Official Gazette at the Liquidator's expense. - The Liquidator must verify and settle statutory dues as per the I.B. Code provisions. - The Liquidator must communicate the order to the ROC and other statutory authorities. Conclusion: The Tribunal concluded that the ROC's action to strike off the company's name was not justified due to the ongoing CIRP and the moratorium under the I.B. Code. The appeal was conditionally allowed, and the company's name was ordered to be restored in the statutory register, subject to compliance with the specified conditions.
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