Delhi High Court
M/S True Fab Private Limited & Anr. 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. 432 of 2009
Reserved on : 20-04-2010
Date of pronouncement: 27-04-2010
M/s True Fab Private Limited & Anr.
...........Petitioner
Through Mr. Rajat Bhalla, 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 company to the Register of Companies maintained by the
Registrar of Companies. M/s True Fab Pvt. Ltd. was incorporated under
the Companies Act, 1956 on 26th May, 1984 vide Certificate of
Incorporation No. 18204 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 23rd June, 2007 at S.No. 5345.
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 sales tax returns for the financial
year 2007-2008, and a copy of the excise return acknowledgement for
2008; 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. On an examination of the reply filed by
the respondent, it appears that the address of the registered office of
the petitioner company in the records of the respondent, is correct.
The case of the petitioner, inter alia, is that the registered office of the
company had first been changed on 2nd September, 1985 from ‟19,
South Moti Bagh‟ to ‟41, Friends Colony‟, and later again on 20 th
December, 1997 to „6/37, W.E.A Karol Bagh, New Delhi -110005‟. The
reply filed on behalf on behalf of the respondent indicates that the
change of address in 1997 was incorporated in the records of the
respondent. However, the notice under S.560(5) of the Companies
Act, a copy whereof has been placed on record by the petitioner,
indicates that the same had been sent on 31st August, 2006 to the
address where the registered office of the company was situated
before 2nd September, 1985. Therefore, there is every possibility that
any notices issued by the respondent to the petitioners, with regard to
any action taken under S.560 and sub-clause (1) and (2) thereof by
the respondent, may also 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. 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. annual returns for the period
30.09.2001 to 30.09.2008 and 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.
7. 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.
8. 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, seeing that it had a turnover of Rs.88,90,741/- for the financial
year ending in 31.03.2008, 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.
9. 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.
10. 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.
11. The petition is disposed of.
SUDERSHAN KUMAR MISRA, J.
APRIL 27, 2010
