Delhi High Court
Ashok Kamal Capital Builders Pvt. ... vs Registrar Of Companies on 28 September, 2010
Author: Sudershan Kumar Misra
IN THE HIGH COURT OF DELHI AT NEW DELHI
COMPANY JURISDICTION
COMPANY PETITION NO. 307 OF 2009
Reserved on: 22-09-2010
Date of pronouncement : 28-09-2010
ASHOK KAMAL CAPITAL BUILDERS PVT. LTD.
...........Petitioner
Through : Mr. A.K.Srivastava, Advocate
Versus
REGISTRAR OF COMPANIES
.........Respondent
Through : Mr. Darpan Wadhwa, Advocate
with Ms. Divya Jha, Advocate
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 Ashok Kamal Builders Pvt. Ltd. was incorporated under the
Companies Act, 1956 on 15th July, 1987 vide Certificate of
Incorporation No. 28624 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 balance sheets for the
period 31.03.2002 to 31.03.2008 and annual returns for the period
30.09.2002 to 30.09.2008. 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 by 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 26 th April,
2008 at S.No. 1594.
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 incorrect. Counsel for the petitioner
submitted that, in fact, the registered office of the petitioner had first
shifted from „6, SFS, Greater Kailash - I, New Delhi‟ to „4, Community
Centre II, Ashok Vihar II, New Delhi‟, with effect from 1st December,
1987. Copies of the requisite Form 18 dated 1 st December, 1987 that
had been submitted to the respondent, and of the receipt No.3670
issued by the respondent in respect thereof, have been placed on
record by the petitioner. It was further submitted that the petitioner
company again shifted its registered office to „110, Zamrudpur Auto
Complex, Greater Kailash -I, New Delhi‟, with effect from 30th April,
1990. Copies of the Form 18 dated 3rd May, 1990 and of the receipt
No. 7340 issued by the respondent in respect thereof have also been
placed on record. However, the address being shown as the registered
office of the petitioner company in the website of the respondent
remains the petitioner‟s original address, i.e. „6, SFS, Greater Kailash -
I, New Delhi‟. The respondent has not refuted these facts by placing on
record any proof of dispatch of the notices issued under S.560 to the
petitioner to the correct registered office. It is, therefore, apparent
that none of the notices issued by the respondent under S.560, which
form the condition precedent for the initiation of any proceedings
under S.560, would have been received by the petitioner.
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, a copy of the income tax return verification
form for the assessment year 2008 - 2009, has been annexed to this
petition. It is also submitted that the petitioner is in the process of
recovering certain outstanding amounts due from debtors and is also
engaged in some litigations against the DDA and some other parties.
5. 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. balance sheets for the period
31.03.2002 to 31.03.2008 and annual returns for the period
30.09.2002 to 30.09.2008, 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 petitioner to the
Register of Companies, have also been placed on record.
6. 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."
7. Keeping in mind the fact that the petitioner never received
any notices issued by the respondent before its name was struck off
the Register; 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. Further, since the
petitioner is also involved in recovery proceedings and some
litigations, as aforesaid, which cannot be concluded if the company no
longer exists, it is only proper that its name is restored to the Register.
8. For all these reasons, 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 its name had not been struck off,
in accordance with S.560(6) of the Companies Act, 1956.
9. 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.
10. The petition is disposed of in the above terms.
SUDERSHAN KUMAR MISRA, J.
SEPTEMBER 28, 2010
