Delhi High Court
M/S Auto Kashyap India Private ... 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. 166 OF 2009
Reserved on : 12-03-2010
Date of pronouncement: 07-04-2010
M/s Auto Kashyap India Private Limited & Anr.
...........Petitioners
Through Mr. Mahesh Sukhija, 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 Auto Kashyap India Private Ltd., i.e. petitioner No.1,
was incorporated under the Companies Act, 1956 on 17th June, 1994
vide Certificate of Incorporation No. 55-59689 as a private limited
company with the Registrar of Companies, NCT of Delhi and Haryana.
Petitioner No.2 is Mr. Mr. Anand Kashyap, a Director of petitioner No.1.
3. The petitioner company is stated to be engaged in the
business of automobile and vehicle trading and related services.
4. 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 for the
period 31.03.1999 to 31.03.2008 and failure to file annual returns for
the period 30.09.1999 to 30.09.2008. 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 Register maintained by the
respondent. It is submitted 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 in this regard was
published in the Official Gazette on 23rd June, 2007 at S.No. 6256.
5. 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, certified copies of the audited annual
accounts for the financial years ending 31st March, 2002 to 31st March,
2008, have been annexed to this petition.
6. It is further 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. However, the address of the registered office of the
petitioner company in the records of the respondent is the same as
that stated by the petitioners. In the circumstances, the petitioners are
presumed to have been served the requisite notices under S.560 of
the Companies Act, 1956.
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 firm 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 as "the said firm has
not carried out the job entrusted upon them". It is further submitted
that it was only sometime in December 2008, that the fact of non-
filing of the returns and balance sheets, 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.
8. Counsel for the respondent does not have any objection to
the revival of the company, subject to the petitioners filing all
outstanding statutory documents i.e. annual returns for the period
30.09.1999 to 30.09.2008, and balance sheets for the period
31.03.1999 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 and the shareholders, to the restoration of the name
of the company to the Register maintained by the Registrar of
Companies, have been placed on record as well.
9. The petitioner claims to be a running company. It has filed
this petition within the stipulated limitation period. 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, has 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."
10. Accordingly, 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 30.09.1999 to 30.09.2008, as well as
balance sheets for the period 31.03.1999 to 31.03.2008, were not
filed, to my mind, this is not merely a case of negligence on the part of
the firm of Chartered Accountants. 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, remain that of the management. At the same
time, the company is stated to be functioning one, and as held in
Purushottamdas & Anr (Bulakidas Mohta Co P. Ltd) v Registrar
of Companies (supra), therefore, it is only proper that the impugned
order of the respondent, which struck off the petitioner‟s name from
the Register of Companies, be set aside.
11. I might notice that Rule 94 of the Companies (Court)
Rules, 1959 state, 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.'
12. Consequently, the restoration of the company‟s name to
the Register maintained by the Registrar of Companies will be subject
to the payment of Rs. 22,000/- as costs, payable to the Registrar of
Companies within 3 weeks from today.
13. Consequently, the restoration of the company‟s name to
the Register maintained by the Registrar of Companies will be subject
to the payment of costs, as aforesaid, and 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 impugned order dated 31st May, 2007 for striking off the name of
the petitioner company shall then stand set aside. The name of the
petitioner company, its directors and members shall, as a
consequence, stand restored to the Register of the respondent, as if
the name of the company had not been struck off, in accordance with
S.560(6) of the Companies Act, 1956.
14. Liberty is granted to the respondent to proceed with all
other 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.
15. The petition is disposed of.
SUDERSHAN KUMAR MISRA, J.
April 07, 2010
