Daksha Atul Desai vs Registrar of Companies, Mumbai

“14.

It is noticed that now the Appellant, another Director of the Company has approached the Tribunal by way of filing this appeal on 08.08.2023 under Section 252(3) of the Act arising from the same cause of action and seeking the same relief on the same ground. In these circumstances, the preliminary issue for consideration is whether the present appeal filed by the Appellant under Section 252(3) of the Act is maintainable in law.

15.

A company can be struck off from the Register of Companies maintained by the Registrar of Companies under the provisions of either Section 248(1) or Section 248(2) of the Act. As per the provisions of Section 248(1), the Registrar, having reasonable cause to believe that a company has failed to commence its business within one year of its incorporation or to comply with certain provisions of the Act, is empowered to strike off the name of such company from its records after giving reasonable opportunity to the said company to explain such failure. On the other hand, under the provisions of Section 248(2) of the Act, a company may get its name struck off from the Register of Companies by filing an application in the prescribed manner to Registrar of Companies after extinguishing all its liabilities and passing special resolution with consent of seventy-five per cent of members in terms of paid-up share capital. ……..

17.

Adverting to the facts of the present case now, we find that what the Appellant has filed is an appeal under Section 252(3) whereas only an application and no appeal can be filed under the said provision. Moreover, the present case is not one where the name of the Company was struck off at the behest of its promoters/ directors in the manner prescribed in Section 248(2) of the Act. As a matter of fact, this is a case where the name of the Company was struck off by the Respondent/ RoC for non-compliance of the statutory requirements under Section 248(1) vide its order dated 19.07.2017. In these circumstances, the appeal would lie under Section 252(1) of the Act and not an application under Section 252(3) of the Act.

18.

Taking into consideration the settled legal proposition that quoting a wrong provision of law should not disentitle the party to relief, the instant Appeal is treated as having been filed under Section 252(1) of the Act. However, we find that the present Appeal has not been preferred within a period of three years from the date of order of the RoC, as per the limitation provided under Section 252(1) of the Act. The name of the Company was struck off from the Register of Companies maintained with the Respondent/ RoC vide order dated 19.07.2017, whereas the Appellant filed the Appeal on 08.08.2023. Even if the Appellant is allowed the benefit of the order of Hon'ble Supreme Court dated 10.01.2022 passed in M.A. No.21 of 2022 in M.A. No. 665 of 2021 in Suo Motu Civil Writ Petition No.03/2020 by way of exclusion of entire period from 15.03.2020 to 28.02.2022 from the period of limitation, we find that the instant Appeal is still time-barred.”

“248.

(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 1 [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 3 [section 455; or]

(d)

the subscribers to the memorandum have not paid the subscription which they had undertaken to pay at the time of incorporation of a company and a declaration to this effect has not been filed within one hundred and eighty days of its incorporation under sub-section (1) of section 10A; or

(e)

the company is not carrying on any business or operations, as revealed after the physical verification carried out under sub-section (9) of section 12.] he shall send a notice to the company and all the directors of the company, of his intention to remove the name of the company from the register of companies and requesting them to send their representations along with copies of the relevant documents, if any, within a period of thirty days from the date of the notice.

(2)

Without prejudice to the provisions of sub-section (1), a company may, after extinguishing all its liabilities, by a special 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 stand dissolved.

(6)

The Registrar, before passing an order under sub-section (5), shall satisfy himself that sufficient provision has been made for the realisation of all amount due to the company and for the payment or discharge of its liabilities and obligations by the company within a reasonable time and, if necessary, obtain necessary undertakings from 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.

252.

Appeal to Tribunal.—(1) Any person aggrieved by an order of the Registrar, notifying a company as dissolved under section 248, may file an appeal to the Tribunal within a period of three years from the date of the order of the Registrar and if the Tribunal is of the opinion that the removal of the name of the company from the register of companies is not justified in view of the absence of any of the grounds on which the order was passed by the Registrar, it may order restoration of the name of the company in the register of companies:

Provided that before passing any order under this section, 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, member, creditor or workman before the expiry of twenty years from the publication in the Official Gazette of the notice under sub-section (5) of section 248 may, if satisfied that the company was, at the time of its name being struck off, carrying on business or in operation or otherwise it is just that the name of the company be restored to the register of companies, order the name of the company to be restored to the register of companies, and the Tribunal may, by the order, give such other directions and make such provisions as deemed 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 from the register of companies.”