TMI Blog2019 (2) TMI 1048X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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-Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al resolution or consent of seventy-five per cent. members in terms of paid-up share capital, file an application in the prescribed manner to the Registrar for removing the name of the company from the register of companies on all or any of the grounds specified in sub-section (1) and the Registrar shall, on receipt of such application, cause a public notice to be issued in the prescribed manner: Provided that in the case of a company regulated under a special Act, approval of the regulatory body constituted or established under that Act shall also be obtained and enclosed with the application. (3) Nothing in sub-section (2) shall apply to a company registered under section 8. (4) A notice issued under sub-section (1) or sub-section (2) shall be published in the prescribed manner and also in the Official Gazette for the information of the general public. (5) At the expiry of the time mentioned in the notice, the Registrar may, unless cause to the contrary is shown by the company, strike off its name from the register of companies, and shall publish notice thereof in the Official Gazette, and on the publication in the Official Gazette of this notice, the company shall s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notified. On 13.12.2016, the Appellant Company passed special Resolution at EOGM held on 13th December, 2016 and resolved as under:- RESOLVED THAT the Company do make an application to the Registrar of Companies, Karnataka in Form STK 2 to strike off the name of the Company from the Register of Companies under section 248 of the Companies Act, 2013. 6. On 26th December, 2016, Section 248 came to be enforced and Ministry of Corporate Affairs issued Notification dated 26th December, 2016 (GSR 1174(E)) published in Gazette of India Extraordinary (Part II Section SEC.3(i)) enforcing The Companies (Removal of Names of Companies from the Register of Companies) Rules, 2016 (hereafter referred as Rules ). These Rules were passed exercising powers conferred by Sub-Sections (1), (2) and (4) of Section 248 read with Section 469 of the new Act. Rule (4) prescribes that application for removal of name of the Company under Sub-Section (2) of Section 248 shall be made in Form STK 2 along with the fee of ₹ 5,000/-. 7. As per the Appellant, after passing the Resolution dated 13th December, 2016, the Company wanted to file the same as per STK 2 regarding which the Resolution had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have any assets or liabilities; 2. The Company does not have any bank account as on date; 3. The Company has no statutory liabilities; 4. No inquiry, technical scrutiny, inspection, or investigation is ordered or pending against the Company; 5. No prosecution or any compounding application for any offence under the Act or under any of the other Acts is pending against the Company or against the undersigned; 6. The Company is neither listed nor delisted for non compliance of listing agreement; 7. The Company is not a Company incorporated for charitable purposes under section 8 of the Companies Act, 2013 or section 25 of the Companies Act, 1956; 8. The Company does not have any management disputes or there is no litigation pending with regard to management or Shareholding of the Company; In the given circumstances we are unable to show any cause to the contrary and we, therefore, humbly request you to take such steps as envisaged by the provisions of Section 248(5) of Companies Act, 2013. This representation is made by all the Directors of the Company. 8. The learned Counsel for the Appellant stated that the Appellant had already submitted Resolution d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government decided to introduce the scheme. Clause 1 of the scheme reads as under:- 1. The scheme shall come into force with effect from 01.01.2018 and shall remain in force up to 31.03.2018. Clause 3 is as follows: Applicability: - This scheme is applicable to all defaulting companies (other than the companies which have been struck off/whose names have been removed from the register of companies under section 248(5) of the Act). A defaulting company is permitted to file its overdue documents which were due for filing till 30.06.2017 in accordance with the provisions of this Scheme. 10. Thus, as per Clause 3, the scheme was to be applicable to defaulting companies other than companies which had been struck off. Clause 4 dealt with Procedure to be followed for the purpose of scheme . Clause 4(1) i) to iv) relate to defaulting companies whose names have not been removed from register of Companies. Appellant relies on what is referred as a saving clause which reads as under:- v) In the event of defaulting companies whose names have been removed from the register of companies under section 248 of the Act and which have filed applications for revival under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ree years, the petitioners ought to be provided the benefit of the CODS 2018. Accordingly, this Court directs as under:- (a) The petitioners may file all the requisite returns in relation to the Company to avail the CODS 2018. (b) The petitioners may also file the necessary resolutions for voluntarily striking off the name of the Company as required under Section 248(2) of the Act. (c) The petitioners would also make a necessary application under CODS-2018 alongwith the requisite charges. (d) The aforesaid documents and applications will not be submitted online but in hardcopies to the Registrar of Companies. 6. The Registrar shall scrutinize the same, and if the same are found to be otherwise in accordance with Section 248(2) of the Act, the petitioners would be granted the benefit of the CODS 2018. The removal of the Company from the Register under Section 248(1) of the Act would be deemed as striking off the Company under Section 248(2) of the Act, and the petitioner s application under CODS 2018 would be sympathetically considered by the Registrar. [Emphasis supplied] 12. Thus, it can be seen that the Hon ble High Court gave opportunity for the nec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondent ROC also. It has been argued by him that the Appellant Company was given opportunity when Notice STK 1 was sent. If earlier Form STK 2 was not available, the Company should have filed the same when the Form became available. The Counsel supported the Impugned Orders passed by NCLT that when the Company was not functioning and was not in business, the striking off was correctly done. According to the Counsel, the striking off of the Company based on Section 248(1) was correct and the same cannot be converted into an action under Section 248(2). 16. At the time of arguments, we asked the learned Counsel for the ROC that if all the due and necessary documents have been filed. The Counsel submitted that the same have been filed but the Affidavit of ROC is that the same were filed by misguiding the office of ROC as mentioned in Affidavit filed with Diary No.5674. 17. When this Appeal was filed, this Tribunal on 26th April, 2018 while issuing Notice directed:- During the pendency of the appeal the applicant may apply before the competent authority for getting the benefit of the scheme within the period prescribed, with intention of the competent authority that they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idavit. The Affidavit mentions that after the Company was struck off, the Directors moved the High Court of Karnataka and in view of the directions of the High Court, DINs of the Directors have been activated. Referring to the dismissal of the Petition by NCLT, the Affidavit mentions:- 11. The petitioner Company has submitted a letter dated 27/4/2018 addressed to this office, stating that the Hon ble NCLAT, New Delhi, passed an order dated 26.04.2018 permitting the company to avail COD Scheme 2018. The Company has submitted physical copies of Annual Return Balance Sheets together with Demand Drafts of i) DD No.265320 dt 27/4/2018 for ₹ 30,000/-, ii) DD No.265319 dt 27/-4/2018 for ₹ 31,200/- and iii) DD No.265325 dt 30/04/2018 for ₹ 20,800/-. The said order copy was not submitted along with the letter dt 27/04/2018 but was later submitted through email only on 26/06/2018. As per the interim order of this Hon ble Tribunal dated 26.04.2018 as submitted by the company, it has observed that there was no direction to the appellant to submit the physical copies of the Annual Return and Balance Sheet with the demand drafts/fees to RoC. Inspite of it, the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... since beginning itself, wanted to move under Sub-Section (2) of Section 248 and did pass Resolution and submitted it on 08.02.2017. It is easy for the Respondent to say (see Affidavit - Diary No.7682) that the Appellant should have filed the Resolution under STK 2 when it became available in April, 2017 without saying as to why the citizens should have been put to the difficulties if Section 248 was enforced on 26th December, 2016 and still Form STK 2 was not made available on the website. 20. When this matter was being argued before us on 24th October, 2018, considering the record and submissions, we had recorded:- In the course of arguments, it has come up and the learned Counsel for the ROC seeks time to take instructions from ROC whether in the facts and circumstances of the present matter, the present striking off of the Company can be converted from an Order under Sub-Section (5) of Section 248 into an Order on the basis of Sub-Section (2) of Section 248 of the Companies Act, 2013. 20.1 In response, the learned ROC (Respondent) filed Affidavit dated 2nd November, 2018 (Diary No.8117) claiming that the action had been taken under Section 248(1) of the new Act and s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d even the Scheme of 2018. There is no reason why the Respondent should not have approached the matter more sympathetically. If the Judgement of the Hon ble Delhi High Court in the matter of Sandeep Singh vs. ROC (supra) is seen, paragraphs 5 and 6 of which we have reproduced above, the compliances which the Hon ble High Court sought were filing of requisite returns; filing of necessary resolutions for voluntary striking off; filing of necessary application under the Scheme with the requisite charges; and filing the documents and applications in hard copies. Hon ble High Court directed the ROC in that matter to consider giving benefit under Scheme of 2018 and observed, The removal of the Company from the Register under Section 248(1) of the Act would be deemed as striking off the Company under Section 248(2) of the Act. The Hon ble High Court asked ROC to consider the matter 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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