The Ministry of Corporate Affairs vide notification dated 05-11-2017 struck-off around 2.24 Lakhs companies from the records of Registrar of Company being inactive for more than two years by virtue of the power conferred under section 248(1) of Companies Acts 2016.
The Registrar of Company ROC has sent notice to all the dysfunctional companies not adhering to the rule and regulations of the companies acts 2016. For example, not filing financial returns or annual returns for a continuous period of three financial years during 2013-2014 to 2015 – 2016. All the struck–off companies can approach NCLT under section 252 of the company act for revival of struck-off company against the order of ROC.
The companies that had been struck off from the register of companies and that the assets, properties etc. (i.e. all movable and immovable assets /properties) of such struck off company which cease to operate as legal entities cannot be used, operated, transferred or alienated in any, manner by the companies including by their ex-directors/ authorized signatories, till they are restored by the due process of law under section 252 of the Act Companies.
The Section 252 (3) contemplates that one of the three conditions are required to be satisfied before exercising jurisdiction to restore company to its original name on the register of the Registrar of Companies namely:
- That the company at the time of its name was struck off was carrying on business.
- Or it was in operation
Or it is otherwise just that the name of the company be restored on the register.
Procedure for filing the appeal before the NCLT
An Application/appeal shall be filled in form No. NCLT-9 with NCLT Bench having jurisdiction based on the registered office address of the company with
- Detailed reasons for such restoration along with the evidence and proofs,
- Affidavit verifying the petition in the prescribed form duly notarized,
- Demand draft or online payment of a fees of Rs. 1000/-.
- Copy MOA & AOA
- Copy of notice as issued by the concerned ROC for striking off of the company,
- Copy of board resolution for restoration of name
- Authorization in favor of any director and appointment of any CA, CS or Lawyer to Appear on behalf of the company.
- Latest audited Financials.
- Advance proof of service to ROC.
In the matter of Shivalik Chem Innovation Private Limited Vs ROC, NCT, New Delhi in appeal number 270/2019 on dated 15/07/2019. The Hon’ble NCLT has allowed the petition even ROC has contended that the petitioner company has not filed its statutory returns and other documents since incorporation. Thus, it’s giving rise to the reasonable belief that the company was not operational. The Hon’ble NCLT states that it would be just and proper to order the restoration of the name of Company in the register of the ROC. The petitioner company was directed to file all pending returns in 30 days of restoration and to deposit Rs. 25,000/- to Prime Minister Relief Fund.
Conclusion: –
In view of the same, the NCLT has been flooded with appeals under section 252 of the act against the order of ROC. The NCLT after taking into consideration all the facts and evidence provided by the applicant pass orders with penalty and direct the ROC to register the name of the concerned company.
Disclaimer – The above views/opinions are based on the interpretation of laws and practical experience which may change from person to person. The readers are required to contact at rera@centrik.in to the expert before relying on the above article.
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