Delhi High Court
M/S Vats Associates Pvt. Ltd. ... vs Registrar Of Companies on 7 April, 2010
Author: Sudershan Kumar Misra
IN THE HIGH COURT OF DELHI AT NEW DELHI
COMPANY JURISDICTION
COMPANY PETITION NO. 347 OF 2009
AND
CO. APPLN. NO. /2010 (to be numbered)
Reserved on : 19-03-2010
Date of pronouncement: 07-04-2010
M/s Vats Associates Pvt. Ltd. (Defunct Company)
...........Petitioner
Through Mr. Ashish Midha, Advocate
Versus
Registrar of Companies .........Respondent
Through Mr. V.K.Gupta, Dy. Registrar of Companies
CORAM :
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA
1. Whether Reporters of local papers may be allowed to see the
judgment? No
2. To be referred to the Reporter or not? No
3. Whether the judgment should be reported in the Digest? No
SUDERSHAN KUMAR MISRA, J.
1. This petition has been filed under S.560(6) of the
Companies Act, 1956, seeking restoration of the name of the company
on the Register of Companies maintained by the Registrar of
Companies. M/s Vats Associates Pvt. Ltd. was incorporated under the
Companies Act, 1956 on 28th May, 1990 vide Certificate of
Incorporation No. 55-40286 as a private limited company with the
Registrar of Companies, NCT of Delhi and Haryana.
2. The Registrar of Companies, i.e the respondent herein,
struck the petitioner company‟s name off the Register due to defaults
in statutory compliances, namely, failure to file balance-sheets for the
period 31.03.2000 to 31.03.2008 and failure to file annual returns for
the period 30.09.2000 to 30.09.2008. Consequently, the Registrar of
Companies initiated proceedings under S.560 of the Companies Act,
1956, for the purpose of striking the name of the company off the
Register maintained by the Registrar of Companies. It is stated by
counsel for the respondent that the procedure prescribed under S.560
of the Companies Act, 1956 was followed, notices as required under
S.560(1), S.560(2), S.560(3) and, ultimately, under S.560(5) were
issued, and that the name of the petitioner company was published in
the Official Gazette on 23rd June, 2007 at S.No.3836.
3. The petitioners state that the petitioner company has been
active since incorporation, and has also been maintaining all the
requisite documentation, as per the provisions of the Companies Act,
1956. In support of this statement, a copy of the balance sheet, as at
31.03.08, the profit and loss account, as at 31.03.08, and the income
tax return for the year ending 2008, have been annexed to this
petition.
4. It is further stated by the counsel for the petitioner that
the petitioner company did not receive any show cause notice, nor was
it afforded any opportunity of being heard before the aforesaid action
was taken by the respondent. On examination of the annexures, it
appears the address of the registered office of the petitioner company
in the records of the respondent is correct. In the circumstances, the
petitioners are presumed to have been served the requisite notices
under S.560 of the Companies Act, 1956.
5. It is stated by counsel for the petitioner that the present
petition is within the limitation period stipulated by S.560(6) of the
Companies Act, 1956, i.e. 20 years.
6. The petitioner avers that the accounts of the petitioner
company were prepared and audited every year, and that the
company had engaged the services of a Company Secretary, namely,
Mr. Sunil Bahri, to perform the task of filing the returns with the office
of the Registrar of Companies. It is submitted that from the year 2000,
the said Company Secretary did not file the returns and other
necessary documents with the Registrar of Companies and did not
reveal this fact to the management of the petitioner company. It is
further submitted that it was only in June 2009, when the balance
sheet as at 31.03.08 and the auditors‟ report in respect thereof was
ready to be filed with the respondent that the fact of non-filing of the
returns and other documents with the respondent, as well as the fact
that the petitioner company‟s name had been struck off the Register
maintained by the respondent, was known to the petitioner company.
7. Counsel for the respondent does not have any objection to
the revival of the company, subject to the petitioner filing all
outstanding statutory documents i.e. annual returns for the period
30.09.2000 to 30.09.2008, balance sheets for the period 31.03.2000
to 31.03.2008, along with the filing and additional fee, as applicable on
the date of actual filing. The certificates of „No Objection‟ of the
Directors, to the restoration of the name of the company to the
Register maintained by the respondent, have also been placed on
record.
8. Looking to the fact that the petitioner is a running
company, that it has filed this petition within the stipulated limitation
period, and to the decision of the Bombay High Court in
Purushottamdas & Anr (Bulakidas Mohta Co P. Ltd) v Registrar
of Companies, [1986] 60 Comp Cas 154 (Bom), in paragraph 20
thereof, wherein it has been held, inter alia, that;
"The object of section 560(6) of the Companies Act
is to give a chance to the company, its members
and creditors to revive the company which has
been struck off by the Registrar of Companies,
within a period of 20 years, and to give them an
opportunity of carrying on the business only after
the company judge is satisfied that such
restoration is necessary in the interests of justice."
9. This petition deserves to be allowed. However, a greater
degree of care was certainly required from the petitioner company in
ensuring statutory compliances. Looking to the fact that the annual
returns for the period 30.09.2000 to 30.09.2008, as well as balance
sheets for the period 31.03.2000 to 31.03.2008, were not filed, to my
mind, this is not merely a case of negligence on the part of the
Company Secretary. If any employee, whether part-time or full-time,
defaults in his duties, the primary responsibility for ensuring statutory
compliances, as per S.159 and 200 of the Companies Act, 1956,
remains that of the management. At the same time, the company is
stated to be functioning one, having earned a profit of Rs.93,000/- in
the year ending 31.03.2008.
10. Rule 94 of the Companies (Court) Rules, 1959 states, inter
alia, as follows;
„Unless for any special reasons that the Court shall
otherwise order, the order shall direct that the
petitioners do pay to the Registrar of Companies his
costs of, and occasioned by, the petition.‟
11. Looking to all the facts and circumstances, although the
company deserves to be restored, to my mind, the restoration of the
company‟s name to the Register maintained by the Registrar of
Companies will be subject to the payment of Rs. 25,000/- as costs,
payable to the Registrar of Companies within 3 weeks from today.
12. Consequently, the restoration of the petitioner‟s name to
the Register maintained by the respondent will be subject to the
payment of costs, as aforesaid, and the completion of all formalities,
including payment of any late fee or any other charges which are
leviable by the respondent for the late deposit of statutory documents.
The name of the petitioner company, its directors and members shall,
as a consequence, stand restored to the Register of the Registrar of
Companies, as if the name of the company had not been struck off, in
accordance with S.560(6) of the Companies Act, 1956.
13. Liberty is granted to the respondent to proceed with the
necessary penal action against the petitioner, if so advised, on account
of the petitioner‟s alleged default in compliance with S.162 of the
Companies Act, 1956.
14. The petition and the application praying for interim
directions to issue to the respondent, which is not numbered, are both
disposed of in the above terms.
SUDERSHAN KUMAR MISRA, J.
April 07, 2010
