We have a general question in our mind that if a company is struck off by the ROC or by the application filed by the company itself, can be restored or not?
THE ANSWER IS A BIG YES!
In this article, we will discuss the provisions given in the companies’ law and procedure of restoration of the company
Bare section from the Companies Act 2013
Registrar of Companies can by its own after issuing the notices under section 248(1) strike of the name of the company from the register of companies. In such a case it may happen that the name of the company may be struck off even though the company is active company but due to the non-filing of reply, the ROC has removed the name of the company from the Register. In such a case the directors of such a company have no option but to approach NCLT by making an appeal for the restoration of the name of the company in the Register of companies maintained by the ROC. Legal provisions related to restoration of name of the struck off companies are given in Section 248 to 252 of the Act read with Rule 87A of the NCLT (Amendment) Rules, 2017 (Affairs, 2017) and the Companies (Removal of Name of Companies from the Register of Companies) Rules, 2016. (Affairs M. o., 2016)
Appeal to NCLT for the restoration of the name of the company
Any person aggrieved by the order of the Registrar of Companies may file an appeal before the Court of law (Tribunal) within 3 years of the order passed by Registrar of Companies and if the Court of law is of the opinion that the removal of the name of the company is not justified in view of the absence of any of the grounds on which the order was passed by the ROC, it may pass an order for restoration of the name of the company in the register of companies after giving a reasonable opportunity of making demonstrations and of being heard to the Registrar, the company and all the persons concerned.
Application to NCLT by ROC for the restoration of the name of the company
The Registrar of companies (ROC) may, within a period of 3 years from the date of passing of the order dissolving the company u/s 248, file an application before the Court of law seeking restoration of name of such company if it is satisfied that the name of the company has been struck off from the register of companies either inadvertently or on the basis of improper information furnished by the company or its directors.
Application to NCLT for the restoration of the name of the company by Company or any member or creditor or workmen
The Court of law, on an application made by the company, member, creditor or workman before the expiry of 20 years from the publication in the Official Gazette of the notice of closure of the company, if satisfied that:
(a) the company was, at the time of its name being struck off, carrying on business or doing its operations; or
(b) otherwise it is just that the name of the company is reinstated to the register of firms, may order the name of the company to be restored to the register of companies. Further, the Court of law may also pass an order and provide such other alternative directions and make such provisions as deemed just for placing the company and all other persons in the similar position as nearly as may be as if the name of the company had not been struck off from the register of companies.
Procedure for making an appeal /application to NCLT:
- An appeal or application is to be filed before the Hon’ble bench of NCLT where the registered office of the company is situated, in form NCLT 9. Such an application or appeal should be accompanied by various documents proving that the company is active company and that the name of the company should be restored in the Register of companies and a Demand draft evidencing payments of application fees of `1,000/- should also be annexed to the application or appeal.
Annexure B of NCLT Rules, 2016 provide the list of documents required to be filed with NCLT while filing the application in different sections. The said Annexure not providing any separate list of documents for filing of the application with NCLT u/s 252. Therefore, as per Point NO. 13 of Annexure B “Wherever no document is prescribed to be attached with the application or petition, documents, as mentioned below, may be attached, as applicable.”
- Documents and/or other evidences in support of the statement made in the application/appeal/petition, as are reasonably open to the petitioner(s);
- Affidavit verifying the petition;
- Evidence regarding payment of a fee of INR 2,500/- (Rupees Twenty-Five Hundred Only) (d) Memorandum of appearance with copy of the Board Resolution or the vakalatnama, as the case may be;
- Three copies of the petition; and
- Any other documents in support of the case.
- A copy of the application shall be served on the Registrar of Companies and on such other persons as the Tribunal may direct, not less than 14 days before the date fixed for hearing of the application.
- ROC may send his report to NCLT as to his comments and views on the restoration of the name of the company.
- NCLT after hearing all the parties will pass an appropriate order for restoration of the name of the company in the register of the company maintained by ROC.
- The company is required to file E-form INC-28 to the ROC within 30 days from the date of order of NCLT for the order passed by the NCLT.
- Thereafter, the Company is required to complete the pending filing of financial statements and annual returns with the ROC and other documents as may be directed by the NCLT.