TaxTMI 
TaxTMI 
2023 (4) TMI 14
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....orm STK-7 WP(C) 995/2023 M/s B&M Propmart Private Limited 20th October 2020 5th January 2023 WP(C) 996/2023 M/s Devyansh Hotels & Resorts Private Limited 13th August 2020 13th January 2023 WP(C) 997/2023 M/s B&M Constructions & Developments Private Limited 3rd September 2020 5th January 2023 4. The Petitioner is aggrieved by the orders/ notices of striking off and dissolution issued in Form STK -7, informing the Petitioner through emails, that the names of the companies have been struck off under Section 248 (5) of the Companies Act, 2013. The said orders/ notices are set out below: "FORM No. STK- 7 NOTICE OF STRIKING OFF AND DISSOLUTION [Pursuant to sub section (5) of Section 248 of the Companies Act,2013 and rule 9 of the Companies (Removal of Names of Companies from the Register of Companies) Rules,2016] GOVERNMENT OF INDIA MINISTRY OF CORPORATE AFFAIRS Office of the Registrar of Companies Dated :05.01.2023 This is with respect to this Office's Notice No. RoCDelhi248(1)7208512022 dated 01.07.2022 and notice in form STK 5 issued on dated 28.09.2022 Notice is hereby published that pursuant to sub-section (5) ....
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....he ROC. But the Petitioner claims that the same has never been served. It is further argued that the email addresses of the directors of the companies were available with the ROC. However, despite this, the Forms STK 1 were not served on email. It is only finally when Form STK- 7 is issued, striking off the names of the companies, that the same was served upon the Petitioner over email. He submits that there has been a violation of the Act and Rules and thus, the striking off deserves to be set aside. 7. Ms. Nidhi Raman, ld. Counsel appearing for the ROC, on the other hand submits that all the necessary provisions of the Companies Act, 2013 (hereinafter 'Act') and the Companies (Removal of Name of Companies from the Register of Companies) Rules, 2016 (hereinafter 'said Rules') have been duly complied with by the ROC. She refers to Section 10A of the Act, to submit that before commencement of business, a declaration has to be filed by the directors to the effect that the capital contribution has been made. Further, under Section 10A(3) of the said Act, if the said declaration is not filed and the business is not being carried out by the company, the same is taken as a default and....
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.... a share capital shall not commence any business or exercise any borrowing powers unless - (a) a declaration is filed by a director within a period of one hundred and eighty days of the date of incorporation of the company in such form and verified in such manner as may be prescribed, with the Registrar that every subscriber to the memorandum has paid the value of the shares agreed to be taken by him on the date of making of such declaration; and (b) the company has filed with the Registrar a verification of its registered office as provided in sub-section (2) of section 12. (2) If any default is made in complying with the requirements of this section, the company shall be liable to a penalty of fifty thousand rupees and every officer who is in default shall be liable to a penalty of one thousand rupees for each day during which such default continues but not exceeding an amount of one lakh rupees. (3) Where no declaration has been filed with the Registrar under clause (a) of sub-section (1) within a period of one hundred and eighty days of the date of incorporation of the company and the Registrar has reasonable cause to believe that the company....
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....rom the register of companies on all or any of the grounds specified in sub- section (1) and the Registrar shall, on receipt of such application, cause a public notice to be issued in the prescribed manner: Provided that in the case of a company regulated under a special Act, approval of the regulatory body constituted or established under that Act shall also be obtained and enclosed with the application. (3) Nothing in sub-section (2) shall apply to a company registered under section 8. (4) A notice issued under sub-section (1) or sub-section (2) shall be published in the prescribed manner and also in the Official Gazette for the information of the general public. (5) At the expiry of the time mentioned in the notice, the Registrar may, unless cause to the contrary is shown by the company, strike off its name from the register of companies, and shall publish notice thereof in the Official Gazette, and on the publication in the Official Gazette of this notice, the company shall stand dissolved. (6) The Registrar, before passing an order under sub-section (5), shall satisfy himself that sufficient provision has been made for the realisati....
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....nder registered post or under speed post, there is a presumption of service. Moreover, the companies and/or its directors were well aware of their obligations for filing the declaration, which they admittedly did not do. The onus cannot be shifted to the ROC in the manner as is sought to be done, that the notice ought to have been sent by email, though, the ROC can usually follow the practice of sending notices by email. 17. The case of the Petitioners is that the companies are running companies and their businesses have been severely hampered and jeopardized due to the striking off of the names of the companies and due to the debit freeze and other freezing orders issued qua the bank accounts. 18. The provision of Appeal against striking off orders i.e., Section 252 of the Act reads as under: "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 a....
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....tertained. It is stated that the striking off has taken place vide STK -7 issued on 13th December 2022 and published in the official gazette on 17th December 2022. For whatever reasons, the Petitioner has not approached the National Company Law Tribunal ('NCLT') and has chosen to come before this Court. 20. A perusal of Section 10A as also Section 252(3) of the said Act would show that the delay ultimately is condonable upon the payment of monetary penalty in terms of Section 10A. Even the standards that have been stipulated for restoration of the company by the NCLT is if the NCLT feels it is just that the name ought to be restored or if the company was carrying on business and was in operation. 21. The ROC has undertaken the exercise of striking off defunct and shell companies, which cannot, in any manner be doubted. Paragraphs 6, 7 & 8 of the reply affidavit are relevant and are quoted below: "6. That the action for striking off companies is carried as a drive on the directions of the Director General of Corporate Affairs, Ministry of Corporate Affairs. After issuance of notices to non-compliant companies under STK-1, 1370 companies filed Form e-form 20A as per se....