Delhi High Court
M/S Badar Industries Private ... vs Registrar Of Companies on 27 April, 2010
Author: Sudershan Kumar Misra
IN THE HIGH COURT OF DELHI AT NEW DELHI
COMPANY JURISDICTION
COMPANY PETITION NO. 217 of 2009
Reserved on : 19-04-2010
Date of pronouncement: 27-04-2010
M/s Badar Industries Private Limited
...........Petitioner
Through Mr. Anand K. Ganesan, 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? 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
petitioner company to the Register of Companies maintained by the
Registrar of Companies. M/s Badar Industries Pvt. Ltd was
incorporated under the Companies Act, 1956 on 16th April, 1984 vide
Certificate of Incorporation No. 55-17934 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 company‟s name off the Register due to defaults in
statutory compliances, namely, failure to file annual returns for the
period 30.09.2001 to 30.09.2008 and failure to file balance sheets for
the period 31.03.2001 to 31.03.2008. 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 April 26 - May 2, 2008 at S.No. 896.
3. The petitioner states 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, copies of the audited accounts for the
financial years 2000-2001 to 2007-2008; copies of income tax returns
for the financial years 2000-2001 to 2007-2008; and copies of Form
32 filed in respect of appointment/resignation of directors along with
proof of payment of fee for the same; have been annexed to this
petition.
4. It is further stated by the counsel for the petitioner that
the 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.
5. It appears that the address of the registered office of the
petitioner company in the records of the respondent, stated to be
„1/1881, Ballimaran, Delhi-110006‟ is incorrect. The correct address of
the registered office of the petitioner company is „1/881, Ballimaran,
Delhi-110006‟, as is stated in the petition and its annexures. There is
every possibility that any notice issued by the respondent to the
petitioners, with regard to any action taken under S.560 by the
respondent, may not have been received by the petitioner, which may
have, in turn, caused further lapses in statutory compliances by the
petitioners.
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 company
were prepared and audited every year, and that the petitioner
company‟s secretarial staff was to perform the task of filing the returns
with the office of the Registrar of Companies. It is submitted that the
company‟s secretarial staff 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 company. It is further submitted that it was
only in September 2008 that the fact of non-filing of the returns and
other documents with the respondent, as well as the fact that the
petitioner‟s name had been struck off the Register maintained by the
respondent, was known to the petitioner.
7. Counsel for the respondent does not have any objection to
the revival of the petitioner company, subject to the petitioner filing all
outstanding statutory documents, i.e. failure to file annual returns for
the period 30.09.2001 to 30.09.2008 and failure to file 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. In Purushottamdas & Anr (Bulakidas Mohta Co P.
Ltd) v Registrar of Companies, [1986] 60 Comp Cas 154 (Bom),
the Bombay High Court, 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."
This decision has been followed by this Court in M/s Deepsone
Non-Ferrous Rolling Mills Pvt Ltd v Registrar of Companies, NCT of
Delhi and Haryana, CP No. 285/2009; M/s Kakku E and P Control Pvt
Ltd & Anr v The Registrar of Companies, NCT of Delhi and Haryana, CP
No. 409/2008 and M/s Sohal Agencies Pvt Ltd v Registrar of
Companies, NCT of Delhi and Haryana, CP No. 297/2009.
9. Looking to the facts, it is possible that notice in respect of
action under S.560, Companies Act, 1956, was not sent to the
registered office of the petitioner company. Consequently, the
condition precedent for the initiation of proceedings to strike the
petitioner‟s name off the Register of Companies, was not satisfied. At
the same time, the petitioner company is stated to be a functioning
one, its Director has filed this petition within the stipulated limitation
period, and looking to the decision of the Bombay High Court, it is only
proper that the impugned order of the respondent, which struck the
petitioner‟s name off the Register of Companies, be set aside.
10. Accordingly, the petition is allowed. The restoration of the
petitioner company‟s name to the Register will be subject to the
petitioner filing all outstanding documents required by law and
completion of all formalities, including payment of any late fee or any
other charges which are leviable by the respondent for the late filing of
statutory returns. The name of the petitioner company, its directors
and members shall then, 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.
11. Liberty is granted to the respondent to proceed with penal
action against the petitioner company, if so advised, on account of the
company‟s alleged default in compliance with S.162 of the Companies
Act, 1956.
12. The petition is disposed of.
SUDERSHAN KUMAR MISRA, J.
APRIL 27, 2010
