2021 (1) TMI 274 - Tri - Companies Law

Restoration of name of company in the Registrar of Companies - Section 252 of the Companies Act, 2013 - HELD THAT - The Appellant have submitted sufficient evidence that it has been in operation during the period of striking off and therefore could not be termed as defunct company. Thus, taking into consideration the provisions of Section 252 of the Companies Act, 2013 which vests this Tribunal with a discretion where the Company, whose name has been struck off and such Company is able to demonstrate that there is a running business as on the date when the name was struck off and also keeping in consideration that it is just to do so, can restore the name of the Company in the Register and in the interest of all stakeholders, including the Appellant itself, who seeks restoration of the name of the Company in the register maintained by Registrar of Companies, the company deserved to be restored. The Public Notice of Registrar of Companies striking off the name of the company is set aside. The restoration of the company's name to the Register of Registrar of Companies is ordered subject to its filing of all outstanding documents with proper filing fees along with additional fees required under law and completion of all formalities, including payment of any late fee or any other charges which are leviable by the respondent for the late filing of statutory returns, and also subject to payment of cost of ₹ 25,000/- to be paid to Prime Minister's Relief Fund - Appeal allowed.

Issues:
1. Appeal against striking off the name of a company under Section 252 of the Companies Act, 2013.
2. Company's claim of being operational during the period of striking off.
3. Compliance with statutory requirements and restoration of the company's name.

Issue 1: Appeal against striking off the name of a company under Section 252 of the Companies Act, 2013:
The appellant, a private limited company, filed an appeal against the order of striking off its name by the Registrar of Companies under Section 248(5) of the Companies Act, 2013. The appellant contended that the company had been carrying out business activities and provided evidence to support its claim, including financial statements, income tax returns, and bank statements. The Registrar of Companies issued a notice stating that the company had not been operational for two preceding financial years, leading to the striking off of its name. The appellant argued that it was not given an opportunity to be heard before the name was struck off, and thus, the appeal was made to challenge this decision.

Issue 2: Company's claim of being operational during the period of striking off:
The appellant presented evidence to demonstrate that the company was operational during the period when its name was struck off. This evidence included audited financial statements, income tax returns, and bank statements showing transactions and a closing balance. The appellant argued that the company had been carrying out business activities since its inception and that the name was struck off without following due procedures. The appellant sought restoration of the company's name to continue its operations and comply with statutory requirements.

Issue 3: Compliance with statutory requirements and restoration of the company's name:
The Tribunal considered the provisions of Section 252 of the Companies Act, 2013, which allow for the restoration of a company's name if it can demonstrate that it was operational at the time of striking off. After reviewing the evidence provided by the appellant, the Tribunal found that the company was not defunct and deserved to be restored to the register of companies. The appeal was allowed, setting aside the public notice of striking off the name of the company. The restoration was subject to the company filing all outstanding documents with proper fees, completing formalities, and paying a specified cost to the Prime Minister's Relief Fund. The company's name was to be restored as if it had not been struck off initially, ensuring compliance with legal requirements.

This detailed analysis of the judgment highlights the key issues involved in the appeal against the striking off of the company's name and the subsequent decision by the Tribunal to restore the company's name based on the evidence provided and compliance with statutory requirements.

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