Tribunal overturns NCLT's order, directs Registrar to reinstate company under Companies Act.

The tribunal allowed the appeal, setting aside the NCLT's order and directing the Registrar to treat the striking off of the company under Section 248(2) of the Companies Act, 2013. The tribunal recognized the appellant's compliance with Section 248(2) and the applicability of the Condonation of Delay Scheme, 2018. The NCLT's failure to consider these aspects led to the order being overturned, allowing the company to submit the necessary documents and benefit from the scheme without costs imposed.

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Issues Involved:

1. Restoration of the company's name in the Register of Companies.
2. Compliance with Section 248 of the Companies Act, 2013.
3. Application of the Condonation of Delay Scheme, 2018.
4. Validity of the Registrar of Companies' actions under Section 248(1) versus Section 248(2).

Issue-wise Detailed Analysis:

1. Restoration of the Company's Name in the Register of Companies:

The appellant filed CP 35/BB/2018 under Section 252 of the Companies Act, 2013 before the National Company Law Tribunal (NCLT), Bengaluru Bench, seeking restoration of the company's name in the Register of Companies. The NCLT dismissed the petition on 3rd April 2018, leading to the present appeal. The appellant argued that they had passed a special resolution on 13th December 2016 to strike off the company's name under Section 248 of the Companies Act, 2013, and had attempted to file the necessary Form STK 2, which was not available on the Ministry of Corporate Affairs website until 5th April 2017. Consequently, they uploaded the resolution in Form MGT 14 on 8th February 2017.

2. Compliance with Section 248 of the Companies Act, 2013:

Section 248 outlines the power of the Registrar to remove a company's name from the register if the company fails to commence business within one year of incorporation or if it is not carrying on any business or operation for two immediately preceding financial years without applying for dormant status. The appellant contended that they had complied with Section 248(2) by passing a special resolution and filing it with the Registrar. The Registrar issued a notice under Section 248(1) on 27th March 2017, stating the intention to remove the company's name due to inactivity. The appellant responded on 27th April 2017, confirming the company's inactivity and lack of liabilities, assets, or pending inquiries.

3. Application of the Condonation of Delay Scheme, 2018:

The Ministry of Corporate Affairs introduced the Condonation of Delay Scheme, 2018, to provide relief to defaulting companies and their directors from disqualification under Section 164 of the Companies Act, 2013. The scheme allowed defaulting companies to file overdue documents and seek revival. The appellant filed the petition under Section 252 on 22nd January 2018, within the scheme's applicability period. The appellant argued that the NCLT should have considered the scheme and provided the benefit to the appellant.

4. Validity of the Registrar of Companies' Actions under Section 248(1) versus Section 248(2):

The appellant argued that the Registrar should have considered their application under Section 248(2) instead of Section 248(1). The appellant had passed a special resolution and filed it with the Registrar, and had also responded to the notice under Section 248(1). The appellant contended that the Registrar's action under Section 248(1) led to the directors' disqualification under Section 164. The NCLT did not consider the impact of the order under Section 248(1) versus Section 248(2) and dismissed the petition without addressing the scheme's applicability.

Judgment:

The tribunal noted that the appellant had complied with the requirements of Section 248(2) by passing a special resolution and filing it with the Registrar. The tribunal also acknowledged that the Condonation of Delay Scheme, 2018, was applicable to the appellant. The tribunal found that the NCLT had not considered the scheme and the appellant's compliance with Section 248(2). The tribunal set aside the NCLT's order and declared that the striking off of the appellant company would be treated under Section 248(2) of the Companies Act, 2013, instead of Section 248(1). The tribunal ordered the Registrar to accept the documents filed by the appellant and provide the benefit of the scheme.

Order:

The appeal was allowed, and the impugned order was set aside. The tribunal declared that the striking off of the appellant company would be treated under Section 248(2) of the Companies Act, 2013. No orders as to costs.

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