IN THE HIGH COURT OF JUDICATURE AT PATNA COM PET No.8 of 2010 M/S DARAULI CONSTRUCTION PVT. LTD Versus THE UNION OF INDIA & ORS ----------- For the petitioner: Mr. Surendra Singh, Advocate Ms. Shalini Singh,Advocate Mr. Vivek Kumar Singh, Advocate For Union of India: Mr. Bhaktishwar Jha, CGC. ------------ 4. 29.4.2011 Heard learned counsel for the petitioner and learned Central Government Counsel appearing for the Registrar of companies. The petitioner prays for setting aside the Gazette Notification No.46 dated 17.11.2007 at serial No.82 as also the letter dated 1.1.2010 issued by the Registrar of Companies, by which the name of the company has been struck off the Register of Companies and the company has been dissolved. The case of the petitioner is that the company was registered on 20.9.1999 and started carrying on its business in terms of its memorandum of association and regularly filed the statutory documents, i.e., balance sheet and profit and loss accounts, as well as the annual returns up to the financial year ending 31.3.2001, but for the subsequent financial years till 2004- 05, the same could not be filed with the Registrar - 2 - of Companies on account of the fault of the auditor of the company. Thereafter, again despite instructions to the auditor of the company to file the balance sheet for all the years after 2001-02 till 2005-06, only the statutory return for the financial year ending 31.3.2006 was filed on 29.11.2007, although the audited balance sheet, profit and loss accounts, and the annual returns for the financial years 2001-02, 2002-03, 2003-04 and 2004-05 were ready and available for filing. It is the further case of the company that the annual returns, balance sheet and profit and loss accounts for the subsequent years till 2009-10 are also ready to be filed. It is further asserted that the company has at all times been carrying on business and it was in operation and thus it is just and fair that the name of the petitioner company is restored in the Register of Companies by setting aside the Gazette Notification. It is also contended by learned counsel for the petitioner that the mandatory provisions laid down under sub-sections (1), (2) and (3) of Section 560 of the Companies Act were not followed by the Registrar of Companies before the impugned Gazette Notification dated 17.11.2007 was issued - 3 - in terms of Section 560 (5) of the Act. In the supplementary counter affidavit filed on behalf of the Registrar of Companies, although it is asserted that the provisions of sub-sections (1), (2) and (3) of Section 560 of the Companies Act were duly complied with before the Gazette Notification was issued under Section 560(5) of the Act and the necessary letters and notices have been annexed stating that the one under Section 560 (1) was sent by registered post on 18.12.2006, under Section 560 (2) was sent on 21.8.2007 by speed post and under Section 560 (3) was sent on 10.10.2007 by speed post, but no receipt in support of the said assertion has been brought on the record, despite opportunity having been provided to the Registrar of Companies to give a specific reply to the averments made in paragraph No.13 of the company petition with regard to non-compliance of the mandatory provisions of Section 560 (1), (2) and (3) of the Companies Act. In the aforesaid circumstances, it must be held that the mandatory provisions of Section 560 (1), (2) and (3) of the Act have not been complied with and for that sole reason the Gazette - 4 - Notification dated 17.11.2007 is fit to be quashed. In the present matter from the materials available on the record, it is also evident that the petitioner company has been carrying on its business and is in operation all through after it had been incorporated and thus, it is not a defunct company, whose name could have been struck off from the Register of Companies. The said fact also goes to show that necessary notices had not been properly sent by the Registrar of Companies nor received by the company. In any view of the matter, the said fact would be a good ground for directing the restoration of the name of the company in the Register of Companies. The petitioner has also stated and reiterated that it is willing and ready to file the required statutory returns with the additional fee, nine times more than the original fee as provided under Section 611 (2) read with Schedule II of the Companies Act, 1956. In the light of the aforesaid discussions, the petition is allowed. The impugned Gazette Notification dated 17.11.2007, so far it relates to the petitioner company at serial No.82, is - 5 - quashed and it is directed that the name of the petitioner company shall stand restored to the Register of Companies. It is further directed that the petitioner company shall be permitted, as undertaken, to file its statutory returns with the additional fee in terms of the provisions of the Companies Act. VPS ( Ramesh Kumar Datta, J. )