CASE STUDY - REVIVAL OF STRUCK OFF COMPANIES
CASE
STUDY
- REVIVAL OF STRUCK OFF COMPANIES
Short Summary:
In this Flash editorial, the author begins by
referring the provisions of section 252 of Companies Act, 2013 relating to Revival
of Companies Struck off from the record of the Registrar. The main thrust of
the article, however, is upon the ‘DISCUSSION ON CASES
DECIDED BY NCLT IN 2017 U/S 252 FOR REVIVAL OF COMPANIES”
As per date available on NCLT website approx
20 application has been decided by the Hon’ble NCLT u/s 252 for revival of
Struck off Companies, among 20 decision the ratio of rejection and approval is
equal (50-50).
This is article no. 254 of the series of editorials
written by the author on corporate laws {Including Companies Act, 2013, SEBI,
RBI Regulations, IBC, LLP
Act, 2008 etc.}.
In this
editorial the author shall discuss the (i) Decisions of NCLT; (ii) penalties
impose by NCLT; (iii) Directions given by NCLT;(iv) Basis of acceptance and
rejection of applications etc.
Introduction:
At the end of the June, 2017 ROC has struck
off the 100,000 (One Lakh) Companies from its record. List of Companies struck
off from record of ROC available at below given link[1]. Even Our Hon’ble Prime Minister Mr. Narender
Modi in his speech at ICAI on CA day has
confirmed that scrutiny of 300,000 (Three Lakh) Companies are going on, which
can be struck off u/s 248(1).
The companies which struck off by the
ROC includes (i) Companies having Assets, (ii) Companies having liability (iii)
Companies working but not met with ROC compliance (filing of AOC-4/ MGT-7) (iv)
Non working Companies.
As the Companies which was not functioning are pleased
with the decision of struck off their Companies by ROC itself, on the other
hand Companies which was running or having assets or both are under difficulty
to get it revive from the NCLT. Companies which have liabilities in these cases
creditors get exaggerated by the decisions of ROC can file application with
NCLT for revival and to claim amount from the Companies.
As due to such mass struck off by ROC many applications
have filed by the Companies with NCLT for revival of Companies.
DECISIONS OF NCLT
A.
Case Law Detail:
|
Case Name
|
Mahabharat Builders & Developers Ltd. Vs. ROC
Mumbai
|
|
Bench Name
|
The National Company Law Tribunal (NCLT), Mumbai Bench
|
|
Date of Order
|
20th July, 2017
|
|
Section
|
252(3)
|
Grounds of Revival in
case Struck off on Suo-moto by the Company:
Fact of the Case:
I.
Petitioner………..
The Company strike off on the application of the Company itself vides order
dated: 02.01.2015.
II.
Petitioner………..Company
filed the application for strike off due to recession. Now owing to favorable
market conditions, since the management is interested to start a new project
for housing development, the directors and shareholders of the Company have
come together and decided to carry on business mentioned in the objective of
the Company.
Decision of NCLT:
The
provision u/s 252(3) could be invoked only when the Company is struck off from
the Register of Companies on the following ground:
i.
Either inadvertently or on misinformation
furnished by the Company or its directors or;
ii.
Or if any application comes from
any member/workman with a grievance saying that this company was struck off
while carrying on business.
It
is on face appears that Company has been struck off on the application given by
the Company, now it is not the case of applicant it was struck off
inadvertently or on misinformation given by Company or its directors, it is
also not the case of the applicant that this company is still carrying
business,
so
now the market conditions are favorable, Company wants to restore the company,
which is not permissible u/s 252(3).
THIS PETITION FAILS
AND THE SAME IS DISMISSED.
B.
Case Law Detail:
|
Case Name
|
I.
Kasak
Abasan Pvt Ltd. Vs ROC , WB
II.
Manish Awana Vs ROC, WB
III.
Mohit Parikh Vs. ROC,WB
IV.
Sheikh Nuruzzaman Vs ROC,WB
V.
Manoj Kumar Agarwal Vs ROC, WB
|
|
Bench Name
|
The National Company Law Tribunal (NCLT), Kolkata Bench
|
|
Date of Order
|
28th July, 2017
19th July, 2017
26th May, 2017
26th May, 2017
26th April, 2017
|
|
Section
|
252
|
|
Basis of Case
|
Basis was same in all the above mentioned 5
cases, given below
|
Fact of the Case:
I.
Petitioner………..
Company strike off by ROC suo-moto.
II.
Respondent……
ROC submitted his report with the statement showing calculation of filing fees
and additional fees payable for e-filing the pending documents. If the status
of company allowed to become ‘Active’ the petitioner company may be directed to
file all its arrear documents including Financial statement and annual report
till the F.Y. 2016 with normal filing fee and additional fees.
III.
Respondent……ROC
submitted complete sheet of fees including additional fees.
Decision of NCLT:
Petition
can be permitted only on the compliance of statutory requirements as per law,
as pointed out by the ROC in its Report.
NCLT
allow the petition and direct the petitioner to comply with the statutory
requirement by filing the arrear documents including the Financial Statement
and Annual Return.
THIS PETITION ADMITTED
AND WITHOUT ANY LATE FEES.
C.
Case Law Detail:
|
Case Name
|
Furore Housing Finance and Investment(India) Ltd
Vs ROC, WB
|
|
Bench Name
|
The National Company Law Tribunal (NCLT), Kolkata Bench
|
|
Date of Order
|
12th May, 2017
|
|
Section
|
252(3)
|
|
|
Petitioner is not Director, Member, Workmen or
employee of the Company.
|
Limitation of Period
for Restorations of revival of struck off Companies.
Fact of the Case:
I.
Petitioner………..
Petition filed against the order of ROC, WB dated: 10.07.2012 pursuant to
strike off name of Company.
Legal Background:
Section
252(1):
Any
person aggrieved by an order of the Registrar, notifying a company as dissolved
under section 248, may file an appeal
to the Tribunal within a period of three years from the date of the order of
the Registrar and if the Tribunal is of the opinion that the removal of the
name of the company from the register of companies is not justified in view of
the absence of any of the grounds on which the order was passed by the
Registrar, it may order restoration of the name of the company in the register
of companies:
Decision of NCLT:
As per Section 252(1)
any aggrieved person can file petition for restoration of name of Company with
in limitation period of 3(three) years.
Hon’ble
NCLT pronounce that, this appeal has been filed after a lapse of about 5(five)
years from the date of the order of ROC. Therefore, appeal is time barred and
liable to be dismissed as not maintainable.
THIS PETITION FAILS
AND THE SAME IS DISMISSED.
Case Law Detail:
|
Case Name
|
Registrar of Companies, Gujarat V/s. Trans
Housing Finance Corporation Ltd.
|
|
Bench Name
|
The National Company Law Tribunal (NCLT), Ahmedabad Bench
|
|
Date of Order
|
5th June, 2017
|
|
Section
|
Section 252 of Companies Act, 2013
|
|
Appeal No.
|
6/252/NCLT/AHM/2017
|
Fact of the Case:
i. Petitioner……..
Application is filed by ROC, Ahmedabad, Gujarat u/s 252 seeking order to
restore the name of Company.
ii.
Petitioner……..
As
per CAV Judgment dated 27.08.2015 Hon’ble High Court, Gujarat the amount due
from the Company have to be recovered by Liquidator of Alps BPO Services
Limited:
iii.
Petitioner……..The
Hon’ble High Court instruct the Liquidator to restore the name of Company,
thereupon Regional Director requested the ROC, Gujarat to file an application
before NCLT u/s 252
iv.
Respondent……
The name of respondent company comes to be struck of from the ROC on 4.08.2011
u/s 560 of Companies Act, 1956.
Decision of NCLT:
Whether appeal is
filed within period of Limitation?
The
Company was struck off from ROC, Gujarat on 04.08.2011 u/s 560 of CA, 1956.
This appeal filed on 28.02.2017.
Section
252(1) proviso enabled ROC to file appeal before NCLT for restoration of name
of Company within a period of 3(three) years from the date of passing of order
of Struck off.
The
period of limitation for filing appeal by the ROC commences from date of
passing of order i.e. 04.08.2011 even though it is treated that the order
passed u/s 560 of old code is treated as order under Section 2489 of the Act.
Therefore, this appeals is barred by limitation.
THIS PETITION FAILS
AND THE SAME IS DISMISSED.
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