TaxTMI 
TaxTMI 
2013 (10) TMI 1591
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....nt has made it clear that the petition is taken - out under Section 560 of the Act. In paragraph No.11 of the petition, the petitioner has even quoted the said provision. Therefore the petition has to be considered in light of and within the purview and scope of Section 560(6) of the Act. 3. The petitioner has prayed that direction to restore the company on the register of companies may be passed. 3.1 The company whose name is stuck-off is a Private Ltd. Company. 3.2 It is pertinent that until the last date (i.e. when the company came to be struck-off) the company was which can be described as "only Rs. 400/- company" inasmuch as its paid-up share capital was only Rs. 400/- and all there ex-directors are family members. This aspect is evident from the details mentioned in paragraph No.3 and paragraph No.5 of the petition, which read thus:- "3. the petitioner submits that the company was incorporated on 24.7.1996 and was accordingly registered with the office of the Registrar of Companies, Gujarat under the provisions of the Act. The company had three subscribers, viz. (1) The petitioner (2) Smt. Seema Sharma and (3) Shri Sushil Kumar Sharma. 5. The pet....
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....er by the Registrar of Companies. 6. The petitioner submits that after the incorporation of the company by the petitioner and others, the company did well for some time and thereafter, the business fell and the company was not in a position to get more business for sustaining despite numerous efforts put by all the directors and hence, the company was not in a position to file its returns etc., with the office of the Registrar of Companies since 2006 and the company decided to take benefit of the Easy Exit Scheme of the Ministry of Corporate Affairs during the year 2011 and applied for being struck off. Accordingly, the company was struck off during the year 2011, after following the due procedure. 7. The petitioner submits that recently, the petitioner has received various offers for doing business and also, the petitioner has been able to arrange funds to raise the minimum paid-up capital of the company to Rs. 1 lakh. It is submitted that offers received by the petitioner will ensure a smooth and continuous business available to the company and if revived, in all likelihood, the company will flourish and grow. 9. It is submitted that upon the revival of....
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....request and at the behest of the company that the ROC struck off the company from the register. 7.1 Another important aspect which emerges from the record is that the application was made by the company under a scheme launched by the Ministry of Corporate Affairs and the company was not stuck-off by the Registrar from the register in ordinary course and not for any reason mentioned in Section 560(1) to Section 560(5) of the Act. 7.2 It is pertinent to note that in present case the ROC had not issued any notice and not taken any action and did not pass any order on his own motion but the action was taken at the request of the company and under a special scheme and outside the purview of Section 560 of the Act. 7.3 Now, after having voluntarily applied under specially launched scheme and after having voluntarily got itself struck-off from the register, present petition is taken out seeking above quoted relief. 7.4 The scheme is not placed on record. However, it is not disputed even by the learned Counsel for the petitioner that the said scheme does not offer option / remedy to the company to subsequently, and at any time, make application under Section 560(6) of the Act a....
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.... Act viz. (a) at the time of striking off whether the company was carrying on business or whether it was in operation; and (b) whether it is just to restore the company to the register. 7.9 According to the said provision satisfaction of the Court on the aforesaid two counts is necessary for entertaining and accepting the request made by virtue of application under sub-section (6) of Section 560 of the Act. This is evident from the language of the said subsection (6) of Section 560 of the Act, more particularly the expression " if satisfied" which connotes that the satisfaction of the Court would be necessary in considering and deciding the application made under Section 560(6) of the Act. The said sub-section also confers discretion on the Court, which is evident from the expression " it is just that the company be restored". When the provision confers discretion to the Court, the discretion has to be exercised judiciously and upon such judicious exercise of discretion the Court should be satisfied that the company be restored. 7.10 In view of the fact that the petitioner has repeatedly asserted in the petition that the petition is taken out under sub-section (6) of Section ....
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....p capital of the company should be at least Rs. 1 Lac, the subscribed and paid - up capital of the company was only Rs. 400/- and the fact that since long time the company was actually not in operation, and more important fact that except the stipulation by other two family members there is nothing on record to satisfy the Court that the company / petitioner has sufficient funds / capital to fulfill even minimum requirement prescribed by the Act, the Court, even otherwise, cannot be said that it would be just to restore the company. 8. In order to examine and appreciate the issue which arises in present case, it is relevant and necessary to take into account provision under Section 560 of the Act. The said provision read thus:- "560. Power of Registrar to strike defunct company off register.- (1) Where the Registrar has reasonable cause to believe that a company is not carrying on business or in operation, he shall send to the company by post a letter inquiring whether the company is carrying on business or in operation. (2) If the Registrar does not within out month of sending the letter receive any answer thereto, he shall, within fourteen days after the expi....
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....ears from the publication in the Official Gazette of the notice aforesaid, may, if satisfied that the company was, at the time 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; and the [Tribunal] may, by the order, give such directions and make such provisions as seem 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. (7) Upon a certified copy of the order under subsection (6) being delivered to the Registrar for registration, the company shall be 296 deemed to have continued in existence as if its name had not been struck off. (8) A letter or notice to be sent under this section to a company may be addressed to the company at its registered office, or if no office has been registered, to the care of some director, manager or other officer of the company, or if there is no director, manager or officer of the company whose name and address are known to the Registrar, may be sent to each of the persons who subscribed the memorand....
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....n (1) and sub-section (2) and / or notice under sub-section (3) of Section 560 of the Act; and (b) such letter / notice is issued by the Registrar on his own motion and for any reason mentioned / contemplated under Section 560(1) and / or under Section Section 560(4); and (c) after following the procedure under Section 560 of the Act the ROC has, on his own motion, struck off the company from the register for any reason or ground mentioned and contemplated under sub-sections (1) to (5) of Section 560 of the Act; and (d) if the company fees aggrieved by the action of the ROC. 8.5 However, said provision does not contemplate and does not provide for an application seeking recall of the action (i.e. the striking off action and restoration of the company in the register) when such action is not taken under the sub-sections 560(1) to 560(5) of the Act and / or when such action is invited, outside the purview of Section 560, by the company itself. 8.6 Looking to the facts of the present case, it cannot be said that in present case the ROC had, on his own motion, taken the action in question for any reason/s under Section 560(1) to (5) of the Act. 9. Ac....
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....cate for the petitioner are concerned, on perusal of the decision in case of VI Brij Fiscal Service P. Ltd. (supra) it emerges that the issue as to whether the order made by the Registrar of Companies on the application made by a company under some scheme launched by Ministry of Corporate Affairs can be said to be an order under Section 560 of the Act or not i.e. an order outside or dehors the Section 560(1) to 560(5) of the Act and whether an application for cancelling such order can be made under Section 560(6) of the Act or not is not decided in the said decision and therefore said decision does not assist the case of the petitioner. 10.1 So far as the decision in case of Siddhant Garg (supra) is concerned, the said petition was taken out (by the creditor/s of the company [which was struck-off] and not by the same company) under Section 560(6) of the Act read with Rule 9 of Company Court Rules, 1959 wherein the petitioner prayed for restoration of the respondent company in the register maintained by Registrar of the Companies. It is pertinent that the said petition was taken out by the creditors of the concerned company and not by the company itself (as are the facts in pr....
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.... "6. Per contra, Shri S. Srinivas, learned Central Government Standing Counsel, reiterating the contentions urged in the statement of objections filed, would contend that name of the petitioner's company was struck off on account of the voluntary act of the Directors and its members and as on the date it was struck off, it was not in operation and restoring the name of such company, which is not in operation with nil assets and liability, wold not serve any purpose and it would be meaningless. However, it is also contended in the statement of objections to the following effect: "Further, it is submitted that the Respondent has no objection in restoring name of the company under Section 560(6) of the Companies Act, 1956 in case the company is not defunct or is carrying on business or is in operation and the company files its Annual return under section 159 and balance sheet under section 220 of the Companies Act for the financial year 2007 to 2012". On this grounds, ROC has sought for suitable Order being passed." After having noticed and recorded the said reply / response from the Registrar of Companies, the Court also observed and recorded that:- ....
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....ary applications along with financial statements made as on 31.01.2004 was filed under the Simplified Exit Scheme. Accordingly, the same was accepted and the name of the petitioner - company had been struck from the register and dissolved vide the Gazette Notification dated 18.03.2006. 4. Subsequent to the same, the company has realised that the petitioner company was not eligible to file the application under the Simplified Exit Scheme and the application made was erroneous due to inadvertence. The company was not eligible for the reason that it possessed assets as on the date of application. It is in that circumstances the petitioner has approached this Court praying for the relief as stated above. 5. In exactly a similar circumstance, the question had arisen for consideration before the High Court Judicature at Madras in Co.P. No. 249-250/2010. The said petitions were disposed of on 06.01.2011 wherein it was held as hereunder:- "Since it has been contended that they had applied under the Simplified Exit Scheme on thorough misconception of the provisions of the scheme, they would like to restore the company back in the register maintained by the Registr....