Delhi High Court

M/S Anuvind Metal Products Pvt. ... vs The Registrar Of Companies on 8 September, 2010

Author: Sudershan Kumar Misra

               IN THE HIGH COURT OF DELHI AT NEW DELHI

                        COMPANY JURISDICTION

                  COMPANY PETITION NO. 270 OF 2009



                                     Date of pronouncement :08.09.2010



M/s Anuvind Metal Products Pvt. Ltd.
                                                        ...........Petitioner
                         Through :   Mr. Abhishek Vikas, Advocate

                                 Versus

The Registrar of Companies
                                                        .........Respondent

                         Through : Mr. K.S.Pradhan, Asstt. 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. (ORAL)

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 Anuvind Metal Products Pvt. Ltd.

was incorporated under the Companies Act, 1956 on 2nd

November, 1992 vide Certificate of Incorporation No. 55-50826

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 returns

and balance sheets for the financial years 2000-01 to 2005-06.

Consequently, the respondent initiated proceedings under S.560

of the Companies Act, 1956, for the purpose of striking the name

of the petitioner off the Register maintained by his office. 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. 1680.

3. It is the petitioner‟s case that it received only the

notice issued by the respondent under S.560(3), and none of the

other notices allegedly sent by the respondent. A copy of this

notice dated 26th February, 2007, which was admittedly received

by the petitioner has been annexed to the petition. On

examination, it appears that the aforesaid notice specifically

mentions the previous notices issued by the respondent under

S.560(1) and S.560(2). The address of the petitioner‟s registered

office, as stated in the petition, is identical to its address in the

records of the respondent. Therefore, to my mind, there is no

reason to believe that all these notices were not duly served.

The petitioner is deemed to have been served with all the notices

issued by the respondent before the latter struck the petitioner‟s

name off the Register.

4. The petitioner, however, responded only to the

respondent‟s notice dated 26th February, 2007 via its reply dated

15th May, 2007, wherein it stated that it had not received any of

the respondent‟s previous notices under Section 560(1) or

Section 560(2), and that it was regularly filing income tax returns

even though it had not yet commenced business. It was further

stated that the requisite statutory documents had not been filed

with the respondent due to an oversight. An undertaking was

also given by the petitioner, to the effect that it would file the

appropriate documents by the end of May 2007.

5. The returns and the balance sheets for the financial

years 2000-2001, 2001-2002, 2002-2003, 2003-2004, 2004-

2005, and 2005-2006 were, in fact, filed by the petitioner on 30th

May, 2007. Copies of the challans in G.A.R.7 in this regard, in

relation to the respective Form 20B and Form 23AC for the

aforesaid financial years, have been annexed to the petition. The

respondent‟s order striking the name of the petitioner off the

published on 23rd June, 2007 in the Official Gazette, as stated

above.

6. The petitioner admits that the company is „not

carrying on business but is very much in operation‟, and has

been in operation since its incorporation in 1992. The petitioner

is also stated to have been regularly filing income tax returns. It

is further stated that the petitioner has substantial assets,

including the property situated at B-96, Okhla Industrial Estate,

new Delhi -110020, and that the petitioner cannot deal with its

properties so long as its name is not restored to the Register.

The reason given by the petitioner for the delay in filing the

statutory documents is the lack of competent personnel in the

petitioner‟s staff to do the needful, and that, it is for this reason

as well that the documents pertaining to the year 2007-2008

could not be filed with the respondent on 30th May, 2007.

7. Counsel for the respondent does not have any

objection to the revival of the company, subject to the company

filing all outstanding statutory documents, along with the filing

and additional fee, as applicable on the date of actual filing.

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."

9. Looking to the fact that the petition has been filed

within the stipulated limitation period, i.e. within 20 years from

the date of publication of the notice in the Official Gazette, and to

the decision of the Bombay High Court in Purushottamdas &

Anr (Bulakidas Mohta Co P. Ltd) v Registrar of Companies

(supra), this petition deserves to be allowed.

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.'

To my mind, the expression „shall otherwise order‟ used in Rule

94, as reproduced above, means that although, ordinarily, the

costs of the Registrar of Companies must be paid by the

petitioner, however, if the Court considers it necessary to do so,

it may give other orders in this behalf also. From this it follows

that it is open to the Court to issue specific orders departing from

the norm by imposing lower or no costs at all, or even levying

further additional costs, depending on the circumstances.

11. For all these reasons, and looking to the

circumstances, the restoration of the company‟s name to the

payment of Rs. 55,000/- as costs, payable to the Registrar of

Companies. Costs be paid within three weeks from today. 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 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