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2019 (2) TMI 1048 - AT - Companies LawRestoration of the name of the Petitioner Company in the Register of Companies - Section 248 of Companies Act - Held that:- The Impugned Order noted the rival claims and although the scheme was also pointed out to the NCLT, the final part of the Impugned Order simply recorded that the Appellant had on 13.12.2016 itself resolved that application in prescribed form to strike off the name of the Company needs to be filed and observed that it was clear from the report of ROC that the Company was not carrying on business or any operations when the name was struck off and thus, NCLT held that there was no just ground to order restoration of the name of the Company. We find that the NCLT did not consider as to what would be the effect, if the Order remains one of the basis of Section 248(1) and what would be the effect, if it were to be on the basis of Section 248(2). When the scheme was still available, the NCLT could have permitted steps. The declarations given by the Appellant take care of the requirements of Sub-Section (2) of Section 248 that Company may after extinguishing all its liabilities, by a special Resolution, file an application in the prescribed manner to the Registrar for removing the name of the Company from the Register of Companies. Material for satisfaction under Sub-Section (6) of Section 248 was also available to ROC. When the Appellant filed the Resolution with the Registrar of Companies on 8th February, 2017, if the Form STK 2 was not available to the public, the Appellant cannot be held responsible and in the circumstances, it would not be appropriate for the Respondent to stand on technicalities and resist efforts of the Appellant to take benefit of the provisions under Section 248(2) and even the Scheme of 2018. There is no reason why the Respondent should not have approached the matter more sympathetically. In the present matter, we already have the compliances in place and the fees are stated to have been paid by demand drafts. The special Resolution is already there. The filings and application are stated to have been filed. In such situation, it would be appropriate to order the striking off, of the Company to be on the basis of Sub-Section 248(2) instead of Section 248(1) - appeal allowed.
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