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2020 (10) TMI 227 - Tri - Companies LawRestoration of name of the Company in the Register of Companies, maintained by the Registrar of Companies - Section 252 (3) of the Companies Act, 2013 - HELD THAT - The Registrar of Companies, Kerala, who is respondent herein has filed a Report stating that Chapter XVIII of the Companies Act, 2013 containing Section 248-252 which deals with removal of names of companies from the Register of Companies had been brought into force by the Central Government vide notification No. S.O.4167(E) on 26.12.2016. In exercise of powers conferred by Sub Sections (1), (2) (4) of Section 248 read with Section 469 of the Companies Act, 2013 Companies (Removal of Names of Companies from the Register of Companies) Rules, 2016 have also been brought into force by Central Government vide Notification No. GSR 1174E on 26.12.2016 - Ministry of Corporate Affairs vide communication dated 17.02.2017 had instructed all Regional Directors and Registrars of Companies to take strike off action against companies which have failed to file Financial Statements or Annual Returns for immediately two preceding Financial years and have also not filed application under Section 455 (1) of the Companies Act, 2013 for making them as Dormant . It would be just and proper to order restoration of the name of the Company in the Register of Companies - The Company is directed to file all the statutory document(s) along with prescribed fees/additional fee/fine as decided by Registrar of Companies within 30 days from the date on which its name is restored on the Register of Companies by the Registrar of Companies. The appellant is directed to submit a declaration from the Directors regarding the deposit during the demonetization period with the Registrar of Companies - Dated the 31st day of January, 2020.
Issues:
- Restoration of company name in the Register of Companies - Compliance with statutory provisions for striking off a company - Negligence and lack of due diligence by directors in filing statutory returns Analysis: 1. Restoration of company name in the Register of Companies: The appellant, a private company, filed an appeal seeking restoration of its name in the Register of Companies. The appellant argued that the company became dormant due to the death of one of its directors, resulting in a loss of the minimum quorum required to run a private company. The appellant contended that the Registrar of Companies (RoC) failed to comply with the statutory requirement of issuing a notice to all directors before striking off the company's name. The Tribunal, after reviewing the submissions, found merit in the appellant's contentions and ordered the restoration of the company's name in the Register of Companies. The appellant was directed to file all statutory documents and pay a specified cost to the RoC for compliance within a stipulated timeframe. 2. Compliance with statutory provisions for striking off a company: The RoC, in response, highlighted that the company had not filed statutory returns since its incorporation, thereby violating provisions of the Companies Act. The RoC initiated action to strike off the company's name after complying with procedural requirements and formalities as per Section 248 of the Act. The RoC attributed the strike off to the directors' negligence and lack of due diligence in fulfilling statutory duties related to filing returns and responding to notices. Despite the RoC's justifications, the Tribunal ruled in favor of the appellant, emphasizing the RoC's failure to adhere to the statutory mandate of issuing notices to all directors before striking off the company. 3. Negligence and lack of due diligence by directors in filing statutory returns: The RoC asserted that the strike off action was warranted due to the directors' negligence in discharging statutory duties, including filing statutory returns within stipulated timelines and responding to notices. The RoC justified its decision based on the directors' failure to comply with statutory obligations. However, the Tribunal, while acknowledging the RoC's concerns, ultimately ordered the restoration of the company's name, emphasizing the specific violations that led to the strike off action. The Tribunal's order specified conditions for compliance by the appellant and directed the RoC to publish the restoration order in the official gazette. In conclusion, the Tribunal's judgment in the Company Appeal No. CA/05/KOB/2020 favored the appellant, directing the restoration of the company's name in the Register of Companies based on the failure to comply with statutory provisions by the RoC and the specific circumstances leading to the company's strike off. The judgment highlighted the importance of procedural adherence and the consequences of negligence by company directors in fulfilling statutory obligations under the Companies Act.
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