M/S Mace Plastronics Pvt. Ltd. vs The Registrar Of Companies
2010 Latest Caselaw 4560 Del

               IN THE HIGH COURT OF DELHI AT NEW DELHI

                           COMPANY JURISDICTION

                     COMPANY PETITION NO. 330 OF 2009

                                                   Reserved on: 22-09-2010
                                        Date of pronouncement :28-09-2010

M/s Mace Plastronics Pvt. Ltd.
                                                             ...........Petitioner
                            Through :    Mr. P.K.Mittal, Advocate

                                   Versus

The Registrar of Companies
                                                          .........Respondent
                            Through :    Mr. K.S.Pradhan, Dy. Registrar for
                                         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 under S.560(6) of the Companies Act, 1956,

seeks restoration of the name of the petitioner company to the

Register of Companies maintained by the Registrar of Companies. M/s

Mace Plastronics Pvt. Ltd. was incorporated under the Companies Act,

1956 on 19th June, 1985 vide Certificate of Incorporation No. 21262 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‟s name off the Register due to defaults in

statutory compliances, namely, failure to file annual returns and

balance sheets in respect of the financial years 1999-2000 to 2006-

2007. Consequently, the respondent initiated proceedings under S.560

of the Companies Act, 1956, for the purpose of striking the petitioner‟s

name off the Register maintained by the respondent. It is stated 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. 2286. However, the name that appeared in the Official

Gazette at the aforesaid serial number is „Mage Plastronics Pvt. Ltd.‟.

To clarify this position, counsel for the respondent submitted that the

petitioner‟s name in the respondent‟s electronic records was

erroneously recorded as „Mage Plastronics Pvt. Ltd.‟, and therefore, the

same name was also published in the Official Gazette. Counsel for the

respondent further submitted that, however, the petitioner‟s name in

the respondent‟s physical records is correct.

3. The petitioner alleged that it 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, it

appears that the address of the petitioner‟s registered office in the

records of the respondent is correct. It is therefore presumed that the

petitioner was duly served with the notices issued under S.560 by the

respondent.

4. It is averred that the petitioner has been active since

incorporation, and has never been defunct or non-operational. In

support of this statement, copies of the Factory License Fee receipts

issued by the Municipal Corporation of Delhi in respect of factory

operations for the years 2004-2005, 2005-2006 and 2006 - 2009, and

insurance premium receipts for the years 2002-2003 till 2008-2009 in

respect of the insurance premium for the Standard Fire and Special

Perils Policy, have been annexed to this petition.

5. It is also submitted by the petitioner that it had prepared

and maintained all statutory documentation, including accounts that

were audited every year, and that it had engaged the services of Vijay

Bhatia & Co., Chartered Accountants, to perform the task of filing the

documents with the respondent‟s office. It is submitted that the

aforesaid Chartered Accountant firm did not file the returns and other

necessary documents with the respondent. It is further submitted that

it was only in March 2009, when the petitioner tried to file Form 32

electronically, that the fact that it‟s name had been struck off the

Register, was known to it.

6. 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 and balance

sheets in respect of the financial years 1999-2000 to 2006-2007, 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 petitioner to the Register, have also

been placed on record.

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."

8. To my mind, a greater degree of care was required from

the company in ensuring statutory compliances. The petitioner‟s stand

is that the task of filing the documents was entrusted to a professional

firm of Chartered Accountants, who allegedly failed to do so. However,

if any employee, whether part-time or full-time, defaults in his duties,

the primary responsibility for ensuring statutory compliances remains

that of the management. Yet, looking to the fact that the company is

functional; that this petition has been filed within the prescribed

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.

9. 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.

10. The facts and circumstances of this case show that this is

not a case where the interests of justice and requirements of the

statute would be met merely by the payment of costs of the

respondent. The whole matter has obviously been handled in a very

casual manner and must be deprecated. To my mind, such conduct

does not display sound and responsible business functioning expected

of companies. The non-filing of returns and balance sheets with the

respondent had also made it impossible for any interested party to find

out about the financial health of the company over a span of almost

ten years. Earlier decisions on the same lines are M/s Santaclaus Toys

Pvt. Ltd v Registrar of Companies, CP. No.271/2009, decided on 16th

February, 2010; M/s Medtech Pharma India Pvt Ltd v Registrar of

Companies, CP.No.241/2009, decided on 19th April, 2010; Rajinder

Bawa, Director, Baver Suspension (P) Ltd v Registrar of Companies, CP.

No. 406/2008, decided on 27th April, 2010; and M/s Model Machinery

Co. (P.) Ltd. v Registrar of Companies, CP. No. 170/2009, decided on 4th

June, 2010.

11. For all these reasons, the restoration of the company‟s

name to the Register maintained by the respondent will be subject to

the payment of Rs. 75,000/- as exemplary costs, payable to the

common pool fund of the Official Liquidator. In addition, further costs

of Rs. 25,000/- be paid to the respondent. 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

petitioner company, its directors and members shall then, as a

consequence, stand restored to the Register maintained by 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.

12. Liberty is granted to the respondent to proceed with penal

action against the company, if so advised, on account of the

company‟s alleged default in compliance with S.162 of the Companies

Act, 1956.

13. The petition is disposed of in the above terms.

SUDERSHAN KUMAR MISRA, J.

SEPTEMBER 28, 2010