Revival Of Company Struck - Off by Registrar Of Companies

Introduction: 

All are aware that pursuant to the provisions of Section 248 of the Companies Act, 2013, notices have been received from the Registrar of Companies, by those companies which have not commenced its business or 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 section 455, and responses were sought from such companies within 30 days, failing which the name of the said Company would be removed from the Register of Companies. 

After giving reasonable time, the Registrar of Companies, have removed the names of the Companies, which have not responded to their notice, or which have not updated their returns with the ROC, and accordingly the status of the said companies stands changed to “Struck-off”, in the Master Data of the said Companies, as appearing in the MCA Portal. 

It would be not out of point to mention that, most of those companies, which have responded to the notice of ROC, have not been struck-off, and are still active and probably sometime will be available for those Companies to either update their returns or submit application for closure of the Company.

As the matter stands thus, what is the recourse available ??? 

Section 252(3) of the Companies Act, 2013, provides for making an application to the Hon’ble National Company Law Tribunal (NCLT) for revival/restoration. 

Accordingly, the company itself, a member, a creditor or workman before the expiry of twenty years from the publication in the Official Gazette of the notice under Section 248 (5), may, make an application to the Hon’ble National Company Law Tribunal for restoring the name of the Company to the Register of Members. 

The Ministry, vide amendment rules Dt:05.07.2017, has amended the National Company Law Tribunal Rules, by including a new Rule-87-A, so as to provide for the procedure for making the said application to the Hon’ble Tribunal. 

Procedure/Process/Steps: 

The procedure/process/steps for filing of application with Hon’ble National Company Law Tribunal for restoration of a Company Struck-off by the ROC is as below:  

1. A Petition in Form No.NCLT-9, along with the relevant documents/annexures is to be prepared, and filed with the Hon’ble Company Law Tribunalin Triplicate.

Memorandum and Articles of Association of the Company;

AnnualReports which are pending filing, to show that the Company is having business and was operational;

Affidavitverifying the petition;

Memorandum of appearance/Vakalat supported by Board Resolution; èSuchotherdocuments as maybe required to be provided as proof to the Tribunal to consider the

case;

 

DemandDraft towards fees, drawn in favour of the Pay and Accounts Officer, Ministry of Corporate Affairs, New Delhi/Kolkata/Chennai/Mumbai, as the case may be.

 

2. A copy of the application shall be served on the Registrar of Companies concerned and on such other persons as the Tribunal may direct, not less than 14 days before the date fixed for hearing of the application.

 

3. The Tribunal shall hear the Petitioner Company and the Registrar of Companies (ROC), being the Respondent. The ROC will file his replies to the averments made by the Company in the Petition, and the Tribunal may consider the same.

 

4. After hearing the Parties, if the Tribunal is satisfied, it may pass order the restoration of name of company in the record of the Register of Companies.

 

5. The order of the Tribunal restoring the name of a company in the register of companies, shall contain that:

 

• the applicant shall deliver a certified copy to the Registrar of Companies within thirty days from the date of the order;

 

(b)on such delivery, the Registrar of Companies do, in his official name and seal, publish the order in the Official Gazette;

 

• the applicant do pay to the Registrar of Companies his costs of, and occasioned by, the appeal or application, unless the Tribunal directs otherwise; and

 

(d)the company shall file pending financial statements and annual returns with the Registrar and comply with the requirements of the Companies Act, 2013 and rules made thereunder within such time as may be directed by the Tribunal.

 

6. The Company to file copy of the Order with ROC, with in period of 30 days from the date of the order. Note:As the Company is in Strike-off mode, the Order of the Hon’ble Tribunal is to be submitted physically at ROC and acknowledgement obtained from ROC/Office of the ROC.

 

7. ROC to take necessary action as to publish the order in the Official Gazette, and convert the status of the Company from Strike-off to Active, so as to enable the Company to upload the pending returns;

 

 

8. The Company to file all the pending returns with ROC, as per the Act, and also as per the directions of the Hon’ble National Company Law Tribunal.

 

Note: It is to be noted that the Hon’ble National Company Law Tribunal, may on a case to case basis impose such penalty on the Company and also on the Directors of the Company.

 

Conclusion:

 

The initiative of the Ministry to clean up the data of inactive Companies, is a welcome move. Though ample opportunity was given to Corporates, to make good the defects, the unresponsive attitude of the Corporates seems unchangeable, and now, has resulted in further burdening of the already burdened Hon’ble Tribunals.