Delhi High Court

M/S Himalaya Packaging & Printing ... 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. 373 OF 2009

                                               Reserved on : 10-03-2010
                                     Date of pronouncement: 07-04-2010

M/s Himalaya Packaging & Printing Pvt. Ltd. & Anr.
                                                         ...........Petitioners
                            Through Mr. Rajender Yadav, 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

petitioner No.1 on the Register of Companies maintained by the

Registrar of Companies.

2. M/s Himalaya Packaging & Printing Pvt. Ltd., i.e. petitioner

No.1, was incorporated under the Companies Act, 1956 on 6 th January,

1995 vide Certificate of Incorporation No. 55-64119 as a private

limited company with the Registrar of Companies, NCT of Delhi and

Haryana. Petitioner No.2 is Mr. Harpal Singh Yadav, a Director as well

as shareholder of petitioner No.1.

3. The Registrar of Companies, i.e the respondent herein,

struck the petitioner No.1‟s name off the Register for defaults in

statutory compliances, namely, failure to file balance-sheets as at

31.03.2003 to 31.03.2005 and 31.03.2007 and failure to file annual

returns made up to 30.09.2003 to 30.09.2005 and 30.09.2007. The

respondent had initiated proceedings under S.560 of the Companies

Act, 1956, for the purpose of striking the name of the company off 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 petitioner No.1 in this regard was

published in the Official Gazette on 26th April, 2008 at S. No. 3801.

4. The petitioners state that the 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, the audited accounts of the company for the

year ending 31st March, 2008, a copy of the balance sheet, as at 31st

March, 2008, the Profit and Loss Account for the year ending 31 st

March, 2008, as well as auditors‟ reports in this regard, have been

annexed to this petition. It is alleged that the Annual Report of the

petitioner company for the financial year 2004-2005 was prepared, but

was not filed with the respondent due to a clerical mistake, and that

the petitioners remained under the impression that the same had been

filed. This Annual report for the financial year 2004-2005 has also

been annexed to the petition.

5. It is also stated by the counsel for the petitioners that they

did not receive any show cause notice, nor were they afforded any

opportunity of being heard before the aforesaid action was taken by

the respondent. The fact of a change of address of the registered office

of the petitioner No. 1 to 1626/33, Naiwala, Karol Bagh, New Delhi -

110005, is stated to have been communicated to the respondent on

22nd November, 2002 in the requisite Form 18. Proof of receipt of this

intimation by the office of the respondent is also on record.

6. However, the address of the petitioner No. 1 in the challan

issued by the respondent in respect of the fee for filing Form 20B for

the year ending 30.09.2006, is still shown as „A-34, Rewari Line

Industrial Area, Phase I, New Delhi‟, which is the old address of the

petitioner No. 1. Therefore, there is every possibility that the address

of the petitioner No. 1 in the records of the respondent, has remained

unchanged, despite due intimation of the same by the petitioner No. 1

to the respondent in 2002. Consequently, any notice issued by the

respondent to the petitioners, with regard to any action under Section

560 by the respondent, may not have been received by the

petitioners, which may have, in turn, caused further lapses in statutory

compliances by the petitioners.

7. The petitioners aver that the accounts of the petitioner

company were prepared and audited every year, and that the

company had engaged the services of a Chartered Accountant to

perform the task of filing the returns with the office of the Registrar of

Companies. It is submitted the returns and other necessary documents

were not filed with the Registrar of Companies "due to some mistake

of the CA". It is further submitted that it was only sometime in 2007,

that the fact of non-filing of the returns and other documents with the

respondent, as well as the fact that the petitioner No.1‟s name had

been struck off the Register maintained by the respondent, was known

to the petitioners. It is alleged that annual returns for the financial

year ending 31st March, 2006 were filed with the respondent, and that

the same was ignored by the respondent. It is further alleged that

the company could not file its annual returns for the year 2007 as the

DIN number of one of the Directors, namely, Mr. Yudhishther was only

issued on 15th September, 2008.

8. Counsel for the respondent does not have any objection to

the restoration of the company‟s name to the Register of Registrar of

Companies, subject to the petitioners filing all outstanding statutory

documents i.e. annual returns made up to 30.09.2003 to 30.09.2005

and 30.09.2007, balance sheets as at 31.03.2003 to 31.03.2005 and

31.03.2007, along with the filing and additional fee, as applicable on

the date of actual filing. The certificates of „No Objection‟ of the

Directors, as well as those of the shareholders, to the restoration of

the name of the company to the Register maintained by the

respondent, have been placed on record as well.

9. In Purushottamdas & Anr (Bulakidas Mohta Co P.

Ltd) v Registrar of Companies, [1986] 60 Comp Cas 154 (Bom), it

has been held, inter alia, that;

"20. 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."

10. Looking to the facts, it is possible that notice in respect of

action under S.560 was not sent to the registered office of the

company. Consequently, the condition precedent for the initiation of

proceedings to strike off the name of petitioner No.1 from the Register

maintained by the respondent, was not satisfied. At the same time,

the company is stated to be a functioning one, and looking to the ratio

of Purushottamdas & Anr (Bulakidas Mohta Co P. Ltd) v

Registrar of Companies (supra); it is only proper that the

impugned order of the respondent, which struck off the name of

petitioner No.1 from the Register of Companies, be set aside.

11. Accordingly, this petition deserves to be allowed. The

restoration of the company‟s name to the Register maintained by the