9911796707
TMI Blog2013 (10) TMI 1591X X X X Extracts X X X X X X X X Extracts X X X X ..... out under Section 560 of the Act. In paragraph No.11 of the petition, the petitioner has even quoted the said provision. Therefore the petition has to be considered in light of and within the purview and scope of Section 560(6) of the Act. 3. The petitioner has prayed that direction to restore the company on the register of companies may be passed. 3.1 The company whose name is stuck-off is a Private Ltd. Company. 3.2 It is pertinent that until the last date (i.e. when the company came to be struck-off) the company was which can be described as "only Rs. 400/- company" inasmuch as its paid-up share capital was only Rs. 400/- and all there ex-directors are family members. This aspect is evident from the details mentioned in paragraph No.3 and paragraph No.5 of the petition, which read thus:- "3. the petitioner submits that the company was incorporated on 24.7.1996 and was accordingly registered with the office of the Registrar of Companies, Gujarat under the provisions of the Act. The company had three subscribers, viz. (1) The petitioner (2) Smt. Seema Sharma and (3) Shri Sushil Kumar Sharma. 5. The petitioner submits that as per the provision of Section 3(1)(iii) of the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y by the petitioner and others, the company did well for some time and thereafter, the business fell and the company was not in a position to get more business for sustaining despite numerous efforts put by all the directors and hence, the company was not in a position to file its returns etc., with the office of the Registrar of Companies since 2006 and the company decided to take benefit of the Easy Exit Scheme of the Ministry of Corporate Affairs during the year 2011 and applied for being struck off. Accordingly, the company was struck off during the year 2011, after following the due procedure. 7. The petitioner submits that recently, the petitioner has received various offers for doing business and also, the petitioner has been able to arrange funds to raise the minimum paid-up capital of the company to Rs. 1 lakh. It is submitted that offers received by the petitioner will ensure a smooth and continuous business available to the company and if revived, in all likelihood, the company will flourish and grow. 9. It is submitted that upon the revival of the company, the company shall be in a position to provide employment to drivers, cleaners and other sub-staff. It is submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emerges from the record is that the application was made by the company under a scheme launched by the Ministry of Corporate Affairs and the company was not stuck-off by the Registrar from the register in ordinary course and not for any reason mentioned in Section 560(1) to Section 560(5) of the Act. 7.2 It is pertinent to note that in present case the ROC had not issued any notice and not taken any action and did not pass any order on his own motion but the action was taken at the request of the company and under a special scheme and outside the purview of Section 560 of the Act. 7.3 Now, after having voluntarily applied under specially launched scheme and after having voluntarily got itself struck-off from the register, present petition is taken out seeking above quoted relief. 7.4 The scheme is not placed on record. However, it is not disputed even by the learned Counsel for the petitioner that the said scheme does not offer option / remedy to the company to subsequently, and at any time, make application under Section 560(6) of the Act and ask for recalling the action of striking off the company from the register. It is not even urged by the applicant that the scheme provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o restore the company to the register. 7.9 According to the said provision satisfaction of the Court on the aforesaid two counts is necessary for entertaining and accepting the request made by virtue of application under sub-section (6) of Section 560 of the Act. This is evident from the language of the said subsection (6) of Section 560 of the Act, more particularly the expression " if satisfied" which connotes that the satisfaction of the Court would be necessary in considering and deciding the application made under Section 560(6) of the Act. The said sub-section also confers discretion on the Court, which is evident from the expression " it is just that the company be restored". When the provision confers discretion to the Court, the discretion has to be exercised judiciously and upon such judicious exercise of discretion the Court should be satisfied that the company be restored. 7.10 In view of the fact that the petitioner has repeatedly asserted in the petition that the petition is taken out under sub-section (6) of Section 560 of the Act, it has to be treated as an application under said subsection and has to be considered in light of the said provision. 7.11 So as to co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y was actually not in operation, and more important fact that except the stipulation by other two family members there is nothing on record to satisfy the Court that the company / petitioner has sufficient funds / capital to fulfill even minimum requirement prescribed by the Act, the Court, even otherwise, cannot be said that it would be just to restore the company. 8. In order to examine and appreciate the issue which arises in present case, it is relevant and necessary to take into account provision under Section 560 of the Act. The said provision read thus:- "560. Power of Registrar to strike defunct company off register.- (1) Where the Registrar has reasonable cause to believe that a company is not carrying on business or in operation, he shall send to the company by post a letter inquiring whether the company is carrying on business or in operation. (2) If the Registrar does not within out month of sending the letter receive any answer thereto, he shall, within fourteen days after the expiry of the month, send to the company by post a registered letter referring to the first letter, and stating that no answer thereto has been received and that, if an answer is not receive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estored 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 provisions as seem just for placing the company and all other persons in the same position as nearly as may be as if the name of the company had not been struck off. (7) Upon a certified copy of the order under subsection (6) being delivered to the Registrar for registration, the company shall be 296 deemed to have continued in existence as if its name had not been struck off. (8) A letter or notice to be sent under this section to a company may be addressed to the company at its registered office, or if no office has been registered, to the care of some director, manager or other officer of the company, or if there is no director, manager or officer of the company whose name and address are known to the Registrar, may be sent to each of the persons who subscribed the memorandum, addressed to him at the address mentioned in the memorandum. (9) A notice to be sent under this section to a liquidator may be addressed to the liquidator at his last known place of business." (emphasis supplied) 8.1 For the case on hand it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c) after following the procedure under Section 560 of the Act the ROC has, on his own motion, struck off the company from the register for any reason or ground mentioned and contemplated under sub-sections (1) to (5) of Section 560 of the Act; and (d) if the company fees aggrieved by the action of the ROC. 8.5 However, said provision does not contemplate and does not provide for an application seeking recall of the action (i.e. the striking off action and restoration of the company in the register) when such action is not taken under the sub-sections 560(1) to 560(5) of the Act and / or when such action is invited, outside the purview of Section 560, by the company itself. 8.6 Looking to the facts of the present case, it cannot be said that in present case the ROC had, on his own motion, taken the action in question for any reason/s under Section 560(1) to (5) of the Act. 9. According to the provision i.e. Section 560(6) of the Act when the action is not taken by ROC on his own motion and for any reason and / or circumstances mentioned under Section 560(1) to (5) of the Act then any application / petition for recalling or setting aside the action whereby the company got struck ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be an order under Section 560 of the Act or not i.e. an order outside or dehors the Section 560(1) to 560(5) of the Act and whether an application for cancelling such order can be made under Section 560(6) of the Act or not is not decided in the said decision and therefore said decision does not assist the case of the petitioner. 10.1 So far as the decision in case of Siddhant Garg (supra) is concerned, the said petition was taken out (by the creditor/s of the company [which was struck-off] and not by the same company) under Section 560(6) of the Act read with Rule 9 of Company Court Rules, 1959 wherein the petitioner prayed for restoration of the respondent company in the register maintained by Registrar of the Companies. It is pertinent that the said petition was taken out by the creditors of the concerned company and not by the company itself (as are the facts in present case on hand) or through company's director. Moreover, in the said petition the petitioner - creditor also alleged malafides inasmuch as it was alleged that the respondent No.2 company had, with malafide intention and by malafide action of the former management of the concerned company, got the name of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it was not in operation and restoring the name of such company, which is not in operation with nil assets and liability, wold not serve any purpose and it would be meaningless. However, it is also contended in the statement of objections to the following effect: "Further, it is submitted that the Respondent has no objection in restoring name of the company under Section 560(6) of the Companies Act, 1956 in case the company is not defunct or is carrying on business or is in operation and the company files its Annual return under section 159 and balance sheet under section 220 of the Companies Act for the financial year 2007 to 2012". On this grounds, ROC has sought for suitable Order being passed." After having noticed and recorded the said reply / response from the Registrar of Companies, the Court also observed and recorded that:- "10..... In fact the ROC himself has also given his consent in the counter objection for restoration of course with a rider namely, directing the petitioner- company to file its annual return and balance sheet, as required under Section 159 and 220 of the Companies Act, 1956 by payment of fine and additional fee. In other words, he has consented ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y was not eligible to file the application under the Simplified Exit Scheme and the application made was erroneous due to inadvertence. The company was not eligible for the reason that it possessed assets as on the date of application. It is in that circumstances the petitioner has approached this Court praying for the relief as stated above. 5. In exactly a similar circumstance, the question had arisen for consideration before the High Court Judicature at Madras in Co.P. No. 249-250/2010. The said petitions were disposed of on 06.01.2011 wherein it was held as hereunder:- "Since it has been contended that they had applied under the Simplified Exit Scheme on thorough misconception of the provisions of the scheme, they would like to restore the company back in the register maintained by the Registrar of Companies, Chennai. In view of the aforesaid facts and as no prejudice would be caused to any one by restoring the company back in the Registrar of Companies, I allow this petition as prayed for. Consequent upon this petition being allowed, C.P. No. 250/2010 which is also filed on the similar line stands allowed." 6. In the instant case, since the position being similar to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
