M/S Multichannel Technical ... vs
2010 Latest Caselaw 1814 Del

               IN THE HIGH COURT OF DELHI AT NEW DELHI

                           COMPANY JURISDICTION

                     COMPANY PETITION NO. 410 of 2008

                                                 Reserved on : 19-03-2010
                                       Date of pronouncement: 07-04-2010

In the matter of:-

M/s Multichannel Technical Services Private Limited.
                                                             .........Petitioner
                            Through Mr. Ashish Midha, Advocate
                            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? Yes
2.     To be referred to the Reporter or not? Yes
3.     Whether the judgment should be reported in the Digest? Yes


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 Multichannel Technical Services Pvt. Ltd. was

incorporated under the Companies Act, 1956 on 15th September, 1997

vide Certificate of Incorporation No. 55-89654 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 31.03.2001 to 31.03.2008 and failure to file annual returns for

the period 30.09.2001 to 30.09.08. 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.10343.

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 incorrect. However, the petitioner

company has not placed on record any proof of intimation of the

change of address of its registered office to the respondent. Therefore,

it is entirely possible that the notices issued under S.560 by the

respondent were served at the old address of the petitioner company‟s

registered office.

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 Directors of the petitioner company. It is further

submitted that it was only in August 2008, 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

30.09.2001 to 30.09.2008, balance sheets for the period 31.03.2001

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. The petitioner is stated to be a running company. It has

filed this petition within the stipulated limitation period. In this

context, 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."

9. 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 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, remain that of the management. At the same

time, since there is the possibility of the company to continue to

function and recover its losses, even though it is stated to have run

into accumulated losses of Rs.2,94,018/- in the year ending

31.03.2008, 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.

10. I might notice that 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. Here, not only have the petitioners been negligent in

ensuring regular filing of returns; they have also failed to produce any

proof of intimation to the Registrar of Companies about the change in

the petitioner company‟s registered office. The only presumption,

therefore, can be that the Registrar of Companies was not properly

informed of this fact. Consequently, the petitioner only has itself to

blame if it did not receive the notices issued by the Registrar of

Companies under Section 560 of the Companies Act. The petitioners

have, therefore, been remiss in not only in ensuring proper filing of the

necessary records but also informing the Registrar of Companies of the

change in the registered office. In addition, the publication of the fact

that the name of the company has been struck off in the official

gazette by the Registrar of Companies, which operates as public notice

to all concerned, was also ignored by the petitioners. For these

reasons, the petition deserves to be allowed subject to payment of Rs.

22,000/- as costs to the Registrar of Companies and further costs of

Rs. 11,000/- to be deposited in the common pool fund of the Official

Liquidator. Costs to be paid within three weeks.

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 all

further 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 is disposed of.

SUDERSHAN KUMAR MISRA, J.

April 07, 2010