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TMI Blog2017 (7) TMI 1298X X X X Extracts X X X X X X X X Extracts X X X X ..... n by the Registrar of Company for striking of the name of the applicant's company from its register. As per them, the ROC acted without jurisdiction in directing for issuance of Gazette Notification under Section 560(5) Companies Act, 1956, by deregistering the company. As consequence thereof the applicant company now stands as dissolved despite, being this fact the applicant company is having a huge asset to fulfill its commitment and capable to restart its function to meets its object. If the name of the company is restored in the register of ROC, then there would be no loss to anyone, and the applicant company will start running of its business, otherwise while the company would have to suffer irreparable loss, in case its name is not restored. Thus the applicant company would be prevented from pursuing its business activities. 3. The facts in brief raising to the present company application seeking for above stated relief are stated as under. The applicant company No. 1 was incorporated under the provision of the Companies Act, 1956 with the Registrar of Companies. U.P. on 08.03.1995 and was allotted Registration Number as 20.17663 and subsequently on 10.11.2009, it chan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e company was increased from Rs. 3,000 - to Rs. 1,00,000/- the company allotted 9,700 share of Rs. 10/- to its shareholders on 05th March, 2002. A Copy of such proceedings relating to the increase in share capital and allotment of shares has been filed as ANNEXURE-2 with the present application. 4. It is further stated that even though such allotments were made, but for somehow reasons the Form-2 prescribed for return of allotment of shares could not be filed with the Registrar of Companies. Kanpur U.P. such allotments were made to the shareholders: whose details are given as under. 1. Mr. Srinivas Amaravadi - 2400 shares 2. Mr. Vinumon Kizhakkeveetil Govindan - 2400 shares 3. Mr. Suresh Kumar Jindal - 2400 shares 4. Mr. Manoj Kumar Rastogi - 2500 shares 5. It is also submitted that the Directorship in the company was being changed from time to time. Initially the first Directors of the company were Mr. Kamal Kumar Jain, Mr. Mahesh Panchal and Mr. Srinivas Amaravadi they joined on 20.03.1995. Subsequent thereto, Mr. Mahesh Panchal resigned from the directorship of the company on 20.03.1995. Thereafter, Mr. S.K. Gupta was appointed in August. 1997 thereafter, Mr. S.C. Shar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us by explaining the reasons stated as above the applicant company submits that it never gave up idea of business but was exploring for various possibilities of business, which could not be started earlier on account of reasons mentioned in prescribing paras. It is further contended that communication from the e.g. ROC unfortunately did not reach to the applicants and on account of non-reply from their side the opposite party e.g. Registrar of Companies struck off name of the applicant company from its Register in exercise of its powers conferred under Section 560 of the Companies Act, 1956. Such decision of the Registrar of the Companies has further been got published in the Gazette of India on 11.05.2010. A copy of the Gazette Notification dated 11.05.2010, has been filed and marked as ANNEXURE-5 to the present application. 11. It is also contended that the applicant company did not receive any notice as contemplated under Section 560(1) or Section 560(2) of the Companies Act, 1956. It is categorically stated that the applicants were completely unaware of proceedings undertaken by the Registrar of Companies for striking off the name of the applicant company from its Register. Un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect of the applicant company, that it does not stand as dissolved. 4. We duly considered the above mentioned facts of the case as narrated in detail in the present application/petition. The applicant company' is counsel in support of the application has contended such the provision of Section 560(6) of the Companies Act, 1956 are to be construed liberally, hence the restoration of the name of a company is a rule and rejecting refusing such restoration would be an exception. The power of restoration conferred under Section 560(6) of the Companies Act, are now be vested under corresponding Section 252(3) Companies Act, with this Tribunal. Hence, the applicant's prayer for restoration of its names in the register of Registrar of Companies Kanpur (U.P.) and to further nullity the effect of the Gazette Notification dated 11.05.2010 issued under Section 560(5) of the Companies Act, 1956, declaring for legal dissolution of the company. 5. During the course of hearing before this Tribunal, the Respondent Registrar of Companies submitted a report by offering his comment in reply to the present application. The Registrar of Companies in his report has reported such the compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ' Wherein a Division Bench of the Hon'ble Delhi High Court came to examine the statutory provision of the Section 560 of the Companies Act, read with corresponding provision of the English Companies Act, and their lordships pleased to observe (in para 5, 8 to 10 of the judgment) as such Para 5....... The right of the appellant to file objections as and when execution is filed has not been lost. This remedy is still available to him. Section 560(6) of the Act reads as under: "560. Power of Registrar of strike defiant company off register- ...................... (6) If a company, or any member or creditor thereof feels aggrieved by the company having been struck off the register, the [Tribunal], on an application made by the company, member or creditor before the expiry of twenty years from the publication in the Official Gazette of the notice aforesaid, may if satisfied that the company was, at the time of the striking off carrying on business or in operation or otherwise that it is just that the company be restored to the register, order the name of the company to be restored to the register, and the [Tribunal] may, by the order, give such directions and make such p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toration and having succeed in its restoration the company would be deemed to have been continued in its existence. As in the present matter the name of the company has been struck off from the Registrar of the ROC by its impugned order dated 11.05.2010. The present application is filed before this Tribunal on 31st June, 2017, that is filed almost after 6 and half year, but still it is within limitation. Although applicant company's justification for not making statutory compliance and not filing annual return are not convincing one nor found satisfactory because the company failed to reply to the notices issued by the O/o ROC. However, in the light of the above stated legal position as settled by the Hon'ble Delhi High Court by other judicial precedents. This Court is expected to adopt a liberal approach for allowing restoration of the name of the company in the Registrar of the ROC, and by allowing the same no serious prejudice is going to cause to a third party. As the company is still having its assets with no creditors, therefore, company can restart well its business upon being restored in the Register of the ROC. 9. In the light of above discussion, we are of the v ..... X X X X Extracts X X X X X X X X Extracts X X X X
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