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Judgment
This Petition/Appeal has been filed under Section 252 (1) of the Companies Act, 2013 (the Act) by the Appellant Company through its Director Mr.
Darius Atta Rafaat praying to restore the name of the Company in the Register of Companies maintained by the Respondent (RoC).
The Appellant submits that the Company has been incorporated on 12.09.1960 under the Companies Act, 1956 to carry out the following objects:
“To carry on the business of manufacturing of starches and the bye products, manufacturing of soluble starches, manufacturing of
glucose, dextrins and industrial adhesives, feeding and fattening preparations of every description, extractors of oils and or other products
from any oil bearing substances, bleachers, dyers and printers of yarn and cloth etc.… â€
The Company has failed to file its Financial Statements and Annual Returns for six Financial Years from 2013-2014 to 2018-2019.
The Appellant submits that the Respondent failed to send the notices required under section 248(1) of the Act. The Appellant was trying to file the
Annual Returns and Financial Statements with the Respondent but was unable to file the forms. With Professional help the Appellant came to know
that the Respondent vide public notice under section 248 (5) of the Act, published the name of the Appellant Company in the Official Gazette on
04.08.2018.
In relation to the above notice, the Company was seeking legal opinion and preparing a detailed reply. But before it could take any action, the
Company was struck off and the Respondent published the order of striking off and dissolution on 12.09.2018. The Appellant Company was not given
a fair chance of making a representation before the Respondent.
The Appellant Company has been active since its incorporation and maintains all the requisite papers. However due to the old age of the Directors,
they could not manage the day to day affairs of the Company and gradually the Company was shrunk. The Appellant Company did not receive any
show cause notice from the Respondent nor any opportunity of being heard was given.
The Appellant submits that the Annual Returns and Financial Statements could not be filed due to inadvertence. It has enclosed the audited
accounts for the Financial Years 2014-2015 to 2018-2019 to show that it is actively involved in the business operations. The Appellant has also
enclosed copies of the acknowledgement of Income-Tax Returns for the Assessment Year 2013-2014.
It is submitted that the after the Company is revived, it shall comply with all the pending filings along with the requisite fees and wishes to make
application with the Respondent for availing CFSS and seek voluntary striking off of the Company. The Appellant Company does not have a Bank
account.
The Respondent submitted his Affidavit in reply on 08.09.2020 explaining the following sequence of events leading to the striking off of the name of
the Company:
(a) The Respondent issued Notice in Form STK-1 to the Company and its Directors informing the intention of the Registrar to strike off the name of
the Company and requesting them to submit, within thirty days, cause contrary to the said action.
(b) Further, as required under rule 7 of the Companies (Removal of Names of Companies from the Registers of Companies) Rules, 2016 (the Rules)
the name of the Company was published on the website maintained by the Ministry vide STK-5 dated 19.07.2018 and published public notice so as to
receive any objection to the said intention of the Respondent.
(c) In addition to the publication of the name of the Company on the website of the Ministry, the name was also published in the Official Gazette on
04.08.2018 and in widely circulated leading newspapers “Times of India†(English) and “Maharashtra Times†(Marathi) on 21.07.2018.
(d) Respondent further submits that in the absence of any representation against the proposed striking off, the Respondent struck off the name of the
Company on 11.09.2018 and the dissolution order was published on the website of the Ministry vide STK-7 on 12.09.2018.
With regard to the submissions of the Appellant that the Respondent failed to send the notices, did not give a fair chance to make representations,
did not give any opportunity of being heard, we find that that the Respondent issued Notice in Form STK-1 and STK-5 dated 19.07.2018. The name of
the Company was also published on the website of Ministry on 19.07.2018 as well as in leading newspapers Times of India and Maharashtra Times on
21.07.2018 and in the Official Gazette on 04.08.2018. Finally, the dissolution order was also published on the website of the Ministry vide STK-7 on
12.09.2018. The contentions of the Appellant are thus frivolous and cannot be accepted.
Further it is observed that despite the Company being active Appellant it does not have a Bank Account. This prima facie indicates that the
Company was not carrying on any commercial activity. However, the Appellant submitted that after complying with all the pending statutory filings,
the Company would seek voluntary striking off.
In view of the above and in the interest of justice the name of the Company may be restored in the Register of Companies maintained by the
Respondent to accord it an opportunity to complete all pending filings. Given the above facts and circumstances, we are satisfied that the prayer
sought by the Appellant Company may be allowed. Hence ordered.
ORDER
The Company Appeal CP No. 1112/252(1)/MB/C-II/2020 by the Appellant Company be and the same is allowed on contest. The impugned order
dated 12.09.2018, striking off the Company’s name, is set aside. The name of the Company be restored in the Respondent’s Register of
Companies, subject to the following.
i. The Appellant shall within two months hence file all the pending financial statements and annual and statutory returns with the Respondent as
required under the Act and Rules made thereunder.
ii. The Appellant shall within 30 days hence deliver a certified copy of the order and pay a sum of ₹. 30,000/- (Rupees Thirty Thousand only) towards
costs, to the Respondent.
iii. Upon compliance, the Respondent on receipt of the Order shall in his official name and stamp publish the order in the official gazette and restore
the name of the Company in the Register of Companies forthwith.
iv. The Order however shall not fetter the authority of the Respondent RoC to take such appropriate action against the Company for any other
violation either prior to 08.11.2019 or in the interregnum.
v. Needless to say, failure to comply with any of the above conditions would nullify the effect of this order.