POWER OF ROC FILING OF APPLICATION- REVIVAL OF COMPANY Short Summary: In this flash tabloid, the writer initiates by speak of the provisions of Section 252(1) of Companies Act, 2013 and Section 560(6) of Companies Act, 1956 pursuant to power of Registrar of Companies (ROC) to file application in NCLT for revival of struck off Company.The main drive of the broadsheet, on the other hand, is upon the“Difference between provisions under Old Act, 1956 and Act, 2013 pursuant to revival of Company” In this flash tabloidwriter deliberate the verdicts of Hon’ble National Company Law Tribunal (NCLT), Ahmedabad Bench in case of Registrar of Companies, Gujarat V/s. Trans Housing Finance Corporation Limited. This article contains the difference between provisions of “Revival of Company” under Act, 1956 and Act, 2013 along with decision of Hon’ble NCLT Ahmedabad Bench. This is article no. 253 of the series of editorials written by the author on corporate laws {Including Companies Act, 2013, SEBI, RBI Regulations, IBC, LLP Act, 2008 etc.}. Introduction: As per Companies Act, 1956 & 2013 Company can be Struck Off from the register on the Application of the Company or by Registrar of Companies on suo-moto. On the following grounds (i) a company has failed to commence its business within one year of its incorporation; or (ii) a company is not carrying on any business or operation for a period of two immediately preceding financial years. Grounds of application for strike off are more or less same in both the Act. On the other hand, Act 1956 & 2013 both prescribed provisions in relation to revival struck off Company.The provision pursuant to revival of Companies has been radically changed under Companies Act, 2013. A. Legal Position under Companies Act, 1956 Section 560(6) - If a Company, or Any Memberor Creditor thereof, feels aggrieved by the company having been struck off the register, the Court, on an application made by the company, member or creditor before the expiry of TwentyYearsfrom the publication in the Official Gazette of the notice aforesaid, may, if satisfied that the company was, at thetime of the striking off, carrying on business or in operation or otherwise that it is just that the Company be restored to the register, order the name of the company to be restored to the register. B. Legal Position under Companies Act, 2013 A. 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 Yearsfrom 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. Provided further that if the Registrar is satisfied, that the name of the company has been struck off from the register of companies either inadvertently or on the basis of incorrect information furnished by the company or its directors, which requires restoration in the register of companies, he may within a period of Three Yearsfrom the date of passing of the order dissolving the company under section 248, file an application before the Tribunal seeking restoration of name of such company. B. Section 252(3): A Company, or Any Memberor Creditor or Workman thereof feels aggrieved by the company having its name struck off from the register of companies, the Tribunal on an application made by the company, member, creditor or workman before the expiry of twenty years from the publication in the Official Gazette of the notice under sub-section (5) of section 248 may, if satisfied that the company was, at the time of its name being struck off, carrying on business or in operation or otherwise it is just that the name of the company be restored to the register of companies, order the name of the company to be restored to the register of companies, and the Tribunal may, by the order, give such other directions and make such provisions as deemed just for placing the company and all other persons in the same position as nearly as may be as if the name of the company had not been struck off from the register of companies. C. Finding of the Law – Act, 2013: I. Companies Act, 1956: As per provision of Companies Act, 1956 following persons can file application for revival of name of Company with in limitation period of 20 (Twenty) years. (i) Company (ii) Member (iii) Creditor As a result, any other person like: Employees, Workmen, Registrar of Company, Shareholders of the Company who is not member, competitions etc. can’t file application for revival of name of Struck off Company. II. Companies Act, 2013: As per provision of Companies Act, 2013 (as mentioned above) “Any Person” can file application for revival of name of Company with in limitation period of 3 (Three) years, like: (i) Company (ii) Member (iii) Creditor (iv) Employee (v) Workmen (vi) ROC (vii) Any other aggrieved Person As per Proviso, if the Registrar is satisfied that the name of the company has been struck off from the register of companies either inadvertently or on the basis of incorrect information furnished by the company or its directors,he may within a period of three years from the date of passing of the order dissolving the company. As a result, Registrar of Companies can itself file the application with National Company Law Tribunal (NCLT) for restoration of name of company with in limitation period of 3 (Three) years in case of company is strike off by the ROC pursuant to inadvertent or on the basis of incorrect information. Noted: One can opine that Companies Act, 2013 provides the authority to the Registrar of Company to apply for the restoration of Name of Company with NCLT. Earlier ROC doesn’t have the power pursuant to same under Companies Act, 1956. Power of ROC in relation to filing of application for revival of Company has been discussed in the below mentioned case law: 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 *Here the writer mentioning provisions only relating to power of ROC to file application for restoration of name of Company. I. 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. II. Decision of NCLT: Hon’ble NCLT states that, Second proviso to sub section (1) of Section 252 of Companies Act enables the ROC, Gujarat to file an appeal for restoration of Name of Company in cases where the name of company has been struck off from the Register of Company either inadvertently or on the basis of incorrect information furnished by the Company or its directors. In the case on hand the appeal is not filed on the ground that Registrar of Companies, Gujarat inadvertently struck of the name of the Company from the register of Companies or on the ground that the Company or its directors furnished incorrect information. However, an appeal can be filed before the Tribunal by company or any member or creditor or workman, if aggrieved, within 20 years from the date of publication of the order passed under section 248(5). The application of ROC is dismissed.

POWER OF ROC FILING OF APPLICATION-

 REVIVAL OF COMPANY

Short Summary:

In this flash tabloid, the writer initiates by speak of the provisions of Section 252(1) of Companies Act, 2013 and Section 560(6) of Companies Act, 1956 pursuant to power of Registrar of Companies (ROC) to file application in NCLT for revival of struck off Company.The main drive of the broadsheet, on the other hand, is upon the“Difference between provisions under Old Act, 1956 and Act, 2013 pursuant to revival of Company”

In this flash tabloidwriter deliberate the verdicts of Hon’ble National Company Law Tribunal (NCLT), Ahmedabad Bench in case of Registrar of Companies, Gujarat V/s. Trans Housing Finance Corporation Limited.

This article contains the difference between provisions of “Revival of Company” under Act, 1956 and Act, 2013 along with decision of Hon’ble NCLT Ahmedabad Bench.

This is article no. 253 of the series of editorials written by the author on corporate laws {Including Companies Act, 2013, SEBI, RBI Regulations, IBC, LLP Act, 2008 etc.}.

Introduction:

As per Companies Act, 1956 & 2013 Company can be Struck Off from the register on the Application of the Company or by Registrar of Companies on suo-moto. On the following grounds (i) a company has failed to commence its business within one year of its incorporation; or (ii) a company is not carrying on any business or operation for a period of two immediately preceding financial years. Grounds of application for strike off are more or less same in both the Act.

On the other hand, Act 1956 & 2013 both prescribed provisions in relation to revival struck off Company.The provision pursuant to revival of Companies has been radically changed under Companies Act, 2013.

A.    Legal Position under Companies Act, 1956

Section 560(6) - If a Company, or Any Memberor Creditor thereof, feels aggrieved by the company having been struck off the register, the Court, on an application made by the company, member or creditor before the expiry of TwentyYearsfrom the publication in the Official Gazette of the notice aforesaid, may, if satisfied that the company was, at thetime of the striking off, carrying on business or in operation or otherwise that it is just that the Company be restored to the register, order the name of the company to be restored to the register.

B.     Legal Position under Companies Act, 2013

A.     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 Yearsfrom 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.

Provided further that if the Registrar is satisfied, that the name of the company has been struck off from the register of companies either inadvertently or on the basis of incorrect information furnished by the company or its directors, which requires restoration in the register of companies, he may within a period of Three Yearsfrom the date of passing of the order dissolving the company under section 248, file an application before the Tribunal seeking restoration of name of such company.

B.      Section 252(3):

A Company, or Any Memberor Creditor or Workman thereof feels aggrieved by the company having its name struck off from the register of companies, the Tribunal on an application made by the company, member, creditor or workman before the expiry of twenty years from the publication in the Official Gazette of the notice under sub-section (5) of section 248 may, if satisfied that the company was, at the time of its name being struck off, carrying on business or in operation or otherwise it is just that the name of the company be restored to the register of companies, order the name of the company to be restored to the register of companies, and the Tribunal may, by the order, give such other directions and make such provisions as deemed just for placing the company and all other persons in the same position as nearly as may be as if the name of the company had not been struck off from the register of companies.

C.    Finding of the Law – Act, 2013:

  I.      Companies Act, 1956:

As per provision of Companies Act, 1956 following persons can file application for revival of name of Company with in limitation period of 20 (Twenty) years.

(i) Company                                                    (ii) Member                                                     (iii) Creditor

As a result, any other person like: Employees, Workmen, Registrar of Company, Shareholders of the Company who is not member, competitions etc. can’t file application for revival of name of Struck off Company.

II.      Companies Act, 2013:

As per provision of Companies Act, 2013 (as mentioned above) “Any Person” can file application for revival of name of Company with in limitation period of 3 (Three) years, like:

(i) Company                                                    (ii) Member                                                     (iii) Creditor

(iv) Employee                                                                (v) Workmen                                                 (vi) ROC

(vii) Any other aggrieved Person

As per Proviso, if the Registrar is satisfied that the name of the company has been struck off from the register of companies either inadvertently or on the basis of incorrect information furnished by the company or its directors,he may within a period of three years from the date of passing of the order dissolving the company.

As a result, Registrar of Companies can itself file the application with National Company Law Tribunal (NCLT) for restoration of name of company with in limitation period of 3 (Three) years in case of company is strike off by the ROC pursuant to inadvertent or on the basis of incorrect information.

Noted:

One can opine that Companies Act, 2013 provides the authority to the Registrar of Company to apply for the restoration of Name of Company with NCLT. Earlier ROC doesn’t have the power pursuant to same under Companies Act, 1956.

Power of ROC in relation to filing of application for revival of Company has been discussed in the below mentioned case law:

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

*Here the writer mentioning provisions only relating to power of ROC to file application for restoration of name of Company.

I.      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.

II.      Decision of NCLT:

Hon’ble NCLT states that, Second proviso to sub section (1) of Section 252 of Companies Act enables the ROC, Gujarat to file an appeal for restoration of Name of Company in cases where the name of company has been struck off from the Register of Company either inadvertently or on the basis of incorrect information furnished by the Company or its directors.

In the case on hand the appeal is not filed on the ground that Registrar of Companies, Gujarat inadvertently struck of the name of the Company from the register of Companies or on the ground that the Company or its directors furnished incorrect information.

However, an appeal can be filed before the Tribunal by company or any member or creditor or workman, if aggrieved, within 20 years from the date of publication of the order passed under section 248(5).

The application of ROC is dismissed.