CP No. 432 of 2009 Page 1 of 5 IN THE HIGH COURT OF DELHI AT NEW DELHI COMPANY JURISDICTION COMPANY PETITION NO. 432 of 2009 Reserved on : 20-04-2010 Date of pronouncement: 27-04-2010 M/s True Fab Private Limited & Anr. ………..Petitioner Through Mr. Rajat Bhalla, Advocate Versus Registrar of Companies ……...Respondent Through Mr. V.K.Gupta, Dy. 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 has been filed under S.560(6) of the Companies Act, 1956, seeking restoration of the name of the petitioner company to the Register of Companies maintained by the Registrar of Companies. M/s True Fab Pvt. Ltd. was incorporated under the Companies Act, 1956 on 26th May, 1984 vide Certificate of Incorporation No. 18204 as a private limited company with the Registrar of Companies, NCT of Delhi and Haryana. CP No. 432 of 2009 Page 2 of 5 2. The Registrar of Companies, i.e the respondent herein, struck the company‟s name off the Register due to defaults in statutory compliances, namely, failure to file annual returns for the period 30.09.2001 to 30.09.2008 and failure to file balance sheets for the period 31.03.2001 to 31.03.2008. Consequently, the Registrar of Companies initiated proceedings under S.560 of the Companies Act, 1956, for the purpose of striking the name of the company off the Register maintained by the Registrar of Companies. It is stated by counsel for 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 23rd June, 2007 at S.No. 5345. 3. The petitioner states that the company has been active since incorporation, and has also been maintaining all the requisite documentation, as per the provisions of the Companies Act, 1956. In support of this statement, copies of sales tax returns for the financial year 2007-2008, and a copy of the excise return acknowledgement for 2008; have been annexed to this petition. 4. It is further stated by the counsel for the petitioner that the company 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 an examination of the reply filed by the respondent, it appears that the address of the registered office of the petitioner company in the records of the respondent, is correct. CP No. 432 of 2009 Page 3 of 5 The case of the petitioner, inter alia, is that the registered office of the company had first been changed on 2nd September, 1985 from ‟19, South Moti Bagh‟ to ‟41, Friends Colony‟, and later again on 20th December, 1997 to „6/37, W.E.A Karol Bagh, New Delhi -110005‟. The reply filed on behalf on behalf of the respondent indicates that the change of address in 1997 was incorporated in the records of the respondent. However, the notice under S.560(5) of the Companies Act, a copy whereof has been placed on record by the petitioner, indicates that the same had been sent on 31st August, 2006 to the address where the registered office of the company was situated before 2nd September, 1985. Therefore, there is every possibility that any notices issued by the respondent to the petitioners, with regard to any action taken under S.560 and sub-clause (1) and (2) thereof by the respondent, may also not have been received by the petitioner, which may have, in turn, caused further lapses in statutory compliances by the petitioners. 5. It is stated by counsel for the petitioner that the present petition is within the limitation period stipulated by S.560(6) of the Companies Act, 1956, i.e. 20 years. 6. Counsel for the respondent does not have any objection to the revival of the petitioner company, subject to the petitioner filing all outstanding statutory documents, i.e. annual returns for the period 30.09.2001 to 30.09.2008 and balance sheets for the period 31.03.2001 to 31.03.2008, along with the filing and additional fee, as applicable on the date of actual filing. CP No. 432 of 2009 Page 4 of 5 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.” This decision has been followed by this Court in M/s Deepsone Non- Ferrous Rolling Mills Pvt Ltd v Registrar of Companies, NCT of Delhi and Haryana, CP No. 285/2009; M/s Kakku E and P Control Pvt Ltd & Anr v The Registrar of Companies, NCT of Delhi and Haryana, CP No. 409/2008 and M/s Sohal Agencies Pvt Ltd v Registrar of Companies, NCT of Delhi and Haryana, CP No. 297/2009. 8. Looking to the facts, it is possible that notice in respect of action under S.560, Companies Act, 1956, was not sent to the registered office of the petitioner company. Consequently, the condition precedent for the initiation of proceedings to strike the petitioner‟s name off the Register of Companies, was not satisfied. At the same time, the petitioner company is stated to be a functioning one, seeing that it had a turnover of Rs.88,90,741/- for the financial year ending in 31.03.2008, and looking to the decision of the Bombay High Court, it is only proper that the impugned order of the respondent, which struck the petitioner‟s name off the Register of Companies, be set aside. CP No. 432 of 2009 Page 5 of 5 9. Accordingly, the petition is allowed. 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 of the Registrar of Companies, as if the name of the company had not been struck off, in accordance with S.560(6) of the Companies Act, 1956. 10. Liberty is granted to the respondent to proceed with penal action against the petitioner company, if so advised, on account of the company‟s alleged default in compliance with S.162 of the Companies Act, 1956. 11. The petition is disposed of. SUDERSHAN KUMAR MISRA, J. APRIL 27, 2010