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TMI Blog2023 (4) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... ld show that the delay ultimately is condonable upon the payment of monetary penalty in terms of Section 10A. Even the standards that have been stipulated for restoration of the company by the NCLT is if the NCLT feels it is just that the name ought to be restored or if the company was carrying on business and was in operation. Considering the fact that the bonafides of the Petitioners are not in doubt as the companies are running companies, and the striking off has already been prejudicial to them, this Court deems it appropriate not to relegate the Petitioners to the alternative remedy under Section 252. The Petitioner shall deposit a sum of Rs.1 lakh each for each of the companies as a pro term deposit of penalty under Section 10A(2). The said deposit shall be made within one week, upon which the names of the companies shall be restored - Petition disposed off. - W.P.(C) 995/2023 and CM APPL. 3884/2023 WIT W.P.(C) 996/2023 and CM APPL. 3886/2023, W.P.(C) 997/2023 and CM APPL. 3888/2023, - - - Dated:- 29-3-2023 - JUSTICE PRATHIBA M. SINGH For the Petitioner Through: Mr Prabhat Kumar and Ms. Rupli Singh, Advs. (M: 9354786079) For the Respondents Through: Ms. Ni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ************************************************** FORM No. STK- 7 NOTICE OF STRIKING OFF AND DISSOLUTION [Pursuant to sub section (5) of Section 248 of the Companies Act,2013 and rule 9 of the Companies (Removal of Names of Companies from the Register of Companies) Rules,2016] GOVERNMENT OF INDIA MINISTRY OF CORPORATE AFFAIRS Office of the Registrar of Companies Dated :05.01.2023 This is with respect to this Office's Notice No. RoCDelhi248(1)7208482022 dated 01.07.2022 and notice in form STK 5 issued on dated 28.09.2022 Notice is hereby published that pursuant to sub-section (5) of Section 248 of the Companies Act, 2013 the name of B M CONSTRUCTIONS DEVELOPMENTS PRIVATE LIMITED has this day of January been struck off the register of companies and the said Company is dissolved. FORM No. STK- 7 NOTICE OF STRIKING OFF AND DISSOLUTION [Pursuant to sub section (5) of Section 248 of the Companies Act,2013 and rule 9 of the Companies (Removal of Names of Companies from the Register of Companies) Rules,2016] GOVERNMENT OF INDIA MINISTRY OF CORPORATE AFFAIRS Office of the Registrar of Companies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anies were being found by the ROC due to which large scale action was taken against such companies under Section 248 of the said Act. 8. As per the ROC notice was issued under Section 248(1) of the said Act in Form STK-1 to the three companies as well as to their directors, on 1st July 2022 in the case of Ms/ B M Propmart Private Limited and M/s B M Constructions and Developments Private Limited and on 7th July 2022 in the case of M/s Devyansh Hotels Resorts Private Limited. It is stated that these notices were issued in terms of the statute and were dispatched by Speed Post on 1st August 2022 in the case of B M Propmart Pvt. Ltd. and B M Constructions and Developments Pvt. Ltd. and on 12th August 2022 in the case of Devyansh Hotels Resorts Private Limited. Notices were also issued to the directors i.e. Mr. Devendra Pandey and Ms. Sushma Pandey at different addresses as uploaded on the MCA portal. Subsequently, the notices in Form STK 5 have also been published in terms of the Rules 3 7 of the said Rules, on the website of the Ministry, the official gazette as also in two newspapers. Thus, the ROC has followed all the required procedures before striking off the names of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e company from the register of companies under Chapter XVIII 12. A perusal of the above section would show that if the declaration is not filed, a penalty is liable to be paid to the tune of Rs.50,000/- by the company. Further, additional penalty of Rs.1,000/- per day till the default continues is payable by every officer in default, not exceeding 1 lakh rupees. 13. Under section 10A(3) of the said Act, the ROC can initiate action for the removal of the name of the company in terms of Chapter XVIII i.e. under Section 248. Section 248 of the said Act reads as under: 248. Power of the Registrar to remove name of company from register of companies (1) Where the Registrar has reasonable cause to believe that - (a) a company has failed to commence its business within one year of its incorporation;[or]; (b) [***] (c) a company is not carrying on any business or operation for a period of two immediately preceding financial years and has not made any application within such period for obtaining the status of a dormant company under [section 455; or] [(d) the subscribers to the memorandum have not paid the subscription which they had undertaken t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the managing director, director or other persons in charge of the management of the company: Provided that notwithstanding the undertakings referred to in this sub-section, the assets of the company shall be made available for the payment or discharge of all its liabilities and obligations even after the date of the order removing the name of the company from the register of companies. (7) The liability, if any, of every director, manager or other officer who was exercising any power of management, and of every member of the company dissolved under sub-section (5), shall continue and may be enforced as if the company had not been dissolved. (8) Nothing in this section shall affect the power of the Tribunal to wind up a company the name of which has been struck off from the register of companies . 14. As per Section 248, if the declaration is not filed within 180 days, the ROC is to send a notice to the company and all the directors of the company of the intention to remove the name of the company from the register of companies. Further, the directors and the company have an option to send their representations along with the copies of the relevant document ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, the Tribunal shall give a reasonable opportunity of making representations and of being heard to the Registrar, the company and all the persons concerned: Provided further that if the Registrar is satisfied, that the name of the company has been struck off from the register of companies either inadvertently or on the basis of incorrect information furnished by the company or its directors, which requires restoration in the register of companies, he may within a period of three years from the date of passing of the order dissolving the company under section 248, file an application before the Tribunal seeking restoration of name of such company. (2) A copy of the order passed by the Tribunal shall be filed by the company with the Registrar within thirty days from the date of the order and on receipt of the order, the Registrar shall cause the name of the company to be restored in the register of companies and shall issue a fresh certificate of incorporation. (3) If a company, or any member or creditor or workman thereof feels aggrieved by the company having its name struck off from the register of companies, the Tribunal on an application made by the company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces in STK-5 were issued in respect of 7849 companies. Thereafter based on objections/replies, striking off proceedings against 191 companies were dropped. Hence, action for final striking off was taken in respect of 7658 companies. 7. That the notice in STK-5 is not sent to the company rather as per Rule 7 of the Companies (Removal of Names of Companies from Register of Companies) Rules, 2016, it is required to be placed on the official website of the Ministry of Corporate Affairs on a separate link established on such website in this regard. It is also required to be published in the Official Gazette and in a leading English newspaper and in a leading vernacular language newspaper, both having wide circulation in the State in which the registered office of the company is situated, which was duly done. Copy of the Companies (Removal of Names of Companies) Rules, 2016 is annexed herewith as Annexure IV. 8. It is submitted that since the publication in the Official Gazette is done by sending STK-7 notice to the Directorate of Printing under the Ministry of Housing and Urban Affairs, Government of India, such notice at first instance is issued outside the MCA21 back off ..... 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