TMI Blog2020 (11) TMI 295X X X X Extracts X X X X X X X X Extracts X X X X ..... nies Act 2013. However, in the year 2010 the notification dated 06.01.2010 expressly declared that the provision of Companies Act 1956 more particularly section 560 of the Companies Act would be applicable to any LLP under LLP Act, 2008 - There is no provision of restoration of stuck off company under the LLP Act, 2008 and therefore we need to seek restoration of the company under the erstwhile section 560 of the companies act, 1956 and more particularly in view of the definition of the company of section 2(20) which includes the previous company law as well. This Bench is of the opinion that in the absence of any relevant provision of restoration of struck off LLP under the LLP Act 2008, the law maker has made provisions to bridge the g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies, Mumbai, Maharashtra with LLP Agreement dated 14.10.2013 having its Registered office situated at: B-38, Shanti Campus CHS, Pandit Madan Mohan Malviya Road, Mulund, Mumbai 400080. 3. ROC Mumbai struck off the appellant company's name due to defaults in compliances namely failure to file statutory financial statements and annual returns for the period from 2014- to 2018. The ROC initiated proceedings under section 75 of the LLP Act, and issued notice dated 11.05.2018 informing the appellant company that the LLP has not been functioning since the year 2014 and the ROC being satisfied under section 75 of the LLP Act, 2008 and the said LLP is liable to be struck off. The ROC eventually struck off the LLP vide public notice on 10.07.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition is filed under incorrect provisions of LLP and is not governed by the Companies Act, 2013. On this ground along the instant petition may be dismissed. 7. The ROC further submitted that the appellant company was incorporated with the ROC, Mumbai on 19.09.2013 under the provisions of the LLP act, 2008 and failed to comply with the statutory compliances under the LLP Act, 2008 for more than 2 years as such the LLP was struck of under section 75 of the LLP Act r/w rule 37 of the LLP rules. 8. The ROC further submits that the LLP was given notice on 11.05.2018 and the LLP was struck vide public notice on 10.07.2018. They further mentioned that the provision of the Companies Act, 2013 more particularly section 252(1)(3) of the Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in disapproving the issue of the notification or both Houses agree in making any modification in the notification, the notification shall not be issued or, as the case may be, shall be issued only in such modified form as may be agreed upon by both the Houses. 11. Further, by notification No. Notification No. G.S.R. 6(E) dated 6th January, 2010, the Central Government declared an exercise of powers under section 67 that the provisions of section 560 of Companies Act are applicable to the Limited Liability Partnership Act, 2008. Notification u/s. 67 of Limited Lia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Company law means and include Companies act 1956. Further it is seen that the LLP Act was enacted in the year 2008, before the introduction of Companies Act 2013. However, in the year 2010 the notification dated 06.01.2010 expressly declared that the provision of Companies Act 1956 more particularly section 560 of the Companies Act would be applicable to any LLP under LLP Act, 2008. 14. There is no provision of restoration of stuck off company under the LLP Act, 2008 and therefore we need to seek restoration of the company under the erstwhile section 560 of the companies act, 1956 and more particularly in view of the definition of the company of section 2(20) which includes the previous company law as well. 15. It was made clear und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Act 1956. We conclude that provisions of Sec 560 of Companies Act 1956 are akin to the provisions of section 252 of the Companies Act 2013, therefore LLPs which was struck off under section 75 of the LLP Act, 2008 shall be restored under Sec. 252 of Companies Act 2013. No person shall be left without the remedy in the absence of any express provision of restoration of LLP under the LLP Act. We necessarily have to rely on the relevant provisions of Sec. 2(20) r/w Sec. 2(60) of Companies Act 2013, r/w Sec. 465 of Companies Act, 2013, r/w the GSR Notification of Central Government dated 06.01.2010 which held that Sec. 560 of Companies Act 1956 was applicable to the LLPs which were incorporated under the LLP Act 2008 and hold that the provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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