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TMI Blog2009 (10) TMI 529X X X X Extracts X X X X X X X X Extracts X X X X ..... following the mandatory provisions prescribed under the Act, he would have discovered that the company was not defunct and its name could not have been struck off by the Registrar of Companies in exercise of his power under section 560(5) of the Act. The Registrar of Companies has further shown non-application of mind as the very filing of the subsequent application for change of name of the petitioner-company, which was allowed by the Registrar, would show that the earlier application dated August 29, 2000, was impliedly withdrawn by the said action of the directors of the company and the plea taken by the Registrar in his reply that no such letter of withdrawal was filed is without any basis. Thus striking off the name of the company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been continuing in operation continuously as per the submissions on behalf of the petitioner-company. In support of the same the audited balance-sheet and profit and loss account of the company from the financial year ending on March 31, 2003, to the financial year ending on March 31, 2008, have also been filed. It is, however, admitted that due to differences among the directors and for other inadvertent reasons the statutory returns, etc., could not be filed before the Registrar of Companies. It is pointed out that the company has engaged renowned doctors of the locality, who are specialised in the faculty for providing services to the hospital on remuneration and has also employed technical and other staffs for the hospital. 4. L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry authority shows complete non-application of his independent mind and thus his action is vitiated on the said ground also. Thus striking off the name of the company from the Register of Companies is non est and fit to be set aside. 7. It is further submitted that in any view of the matter when the company is carrying on its operation continuously since its establishment, for the sole reason that the statutory returns were not submitted in time, the name of the company could not have been struck off, as there are other provisions for non-compliance of such requirements of the Companies Act, but the same cannot lead to striking off the name of the company treating it to be a defunct company without following the statutory provisions and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f learned counsels for the parties, this court is of the view that the action of the Registrar of Companies is wholly unjustified being contrary to the mandatory provisions of section 560 of the Companies Act. It is evident that before exercising the power to strike off the name of the company under sub-section (5) of section 560 of the Companies Act, the Registrar must have reasonable cause to believe that the company is not carrying on business or in operation and for the said purpose he is required under sub-section (1) of the said section to send to the company by post a letter enquiring whether the company is carrying on business or is in operation. If the Registrar does not within one month of the sending of the said letter receive an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner as provided by section 560 of the Act. This court provided another opportunity to the Registrar of Companies to file a supplementary counter affidavit answering the said point but even in the supplementary counter affidavit filed, the said fact has not been answered and other issues regarding the filing of the earlier application for striking off the name of the company have been raised. It is, thus, evident that the fact regarding non-sending of notice under the provisions of section 560 of the Act has been admitted by the Registrar of Companies. In the said circumstances, the action of the Registrar of Companies is contrary to the mandate of section 560 of the Act and the same has to be treated as illegal and non est. 13. For th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the company and the plea taken by the Registrar in his reply that no such letter of withdrawal was filed is without any basis. 16. This court also finds that there was further non-application of mind to the aforesaid facts because the name of the petitioner-company having been changed from Gautam Buddha Children Hospital (P.) Ltd. to Gautam Buddha Hospital and Research Institute (P.) Ltd., it could not have been struck off from the Register of Companies in its original name of Gautam Buddha Children's Hospital (P.) Ltd. as the said name became non-existent in the eye of law once the name of the petitioner-company was permitted to be changed after following the due procedure. 17. For all the aforesaid reasons, this court is of the vi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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