• Invest in India
  • Corporate Legal Services

Restoration Of Name Of A Struck Off Company Under Companies Act, 2013

August 2, 2017     by Sanjoli Singh

Over 1.62 lakh companies have not been carrying out business activities for long have been deregistered and a series of action against such shell companies have been taken, said the Minister of Finance, Mr. Arun Jaitely.

Registrar of Companies (ROC), by the virtue of power conferred under Section 248, can strike off defunct and shell companies. There are companies which have not been doing their annual filings of their financials for couple of years or more.Such companies (which have not done their statutory filings) are therefore deemed (by RoC) not to be carrying on their business.

These actions of government have caused a massive upheaval to the companies which were carrying on the bonafide business (but have not done their statutory filings). Though the ROC must have served notices as mandated under Section 248 on the registered email ids of the Companies before striking them off, but in many cases, there were complaints of not receiving any notice.

However, to such aggrieved companies, the remedy lies in Section 252 of the Companies Act, 2013, which provides for restoration of name of the company.

 

CHARGING SECTION

As per Section 252 of Companies Act, 2013

  • Restoration of name of a Company struck off under section 248 can be done by following ways:
    • Filing an Appeal: Any person aggrieved from the order of the Registrar (ROC) to strike-off the name of a company, can file an appeal within a period of 3 years from the date of order of the Registrar.
    • Application to Tribunal: If a company or any member or creditor or workman has been aggrieved by the company’s name struck off under section 248, it can apply to the Tribunal to restore the company’s name,within a period of 20 years from the date of publication of striking off notice in the official Gazette.
  • The Tribunal,after submission of the application, shall give a reasonable opportunity of being heard to ROC,company and all the parties concerned and thereafter, pass an order that it deems fit.

 

READY REFERENCE

  • Application/Appeal to the Tribunal (NCLT) having jurisdiction over the Registered office of the company
  • There are in all 11 NCLT benches covering all the major locations in India. To know your jurisdiction, please check this link NCLT Benches
  • Copy of appeal or application shall be served on ROC and other parties about restoration atleast 14 days before the date of hearing
  • There should be just causes for restoration of the company like it was carrying on the business and was in operation.

 

MERE FILING OF APPEAL BEFORE NCLT MAY NOT BE ENOUGH

Merely filing of application for restoration of name doesn’t guarantee that the appeal will be allowed by NCLT.

Below mentioned are rare, yet significant orders,where NCLT has taken penal action against the applicants.

  • In the matter of M/S Rainbow Real Estate Pvt. Ltd. V/S Registrar of Companies, NCLT (Principal bench as on 02 June’ 2017) dismissed  application filed by the applicant and imposed a penalty of Rs 20,000 on the ground of  vexatious cause and unnecessarily dragging ROC before the Tribunal. In this case, the applicant had neither filed the income tax return nor any statutory filing was done by the company.
  • In the matter of M/S International Security Printers Pvt. Ltd. V/S Registrar of Companies (NCLT Delhi bench), the applicant came across the fact that it was struck off.It was successfully demonstrated by the Applicant that the Company was doing bonafide business. NCLT allowed the appeal and ordered for restoration. In this case, though the application was not rejected but NCLT granted liberty to ROC to levy penalty on the company.

 

EFFECT UPON RESTORATION

  • After restoration, all the statutory returns of the company shall be filed along with the applicable additional fee
  • According to the Section 252(3) The Tribunal may, by the order , give such other directions and make such provision 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.

 

DETAILED PROCEDURE TO APPLY TO TRIBUNAL AS PER NATIONAL COMPANY LAW TRIBUNAL (AMENDMENT) RULES NOTIFIED BY MCA ON JULY 05, 2017 

  1. Appeal / Application
    • An appeal under section 252(1) and Section 252(3) shall be filed before the Tribunal along with other information as per NCLT Rules, 2016.
    • An application filed by the Registrar of Companies if he’s of the opinion that the name of the company has been struck off on the basis of incorrect or inadvertent information, for restoration of name of a company in the register of companies.
  1. Attachments with NCLT 9 shall be:
    • Copy of MOA and AOA of the Company;
    • List of Directors of the Company;
    • CTC of the order of Registrar for strike off;
    • Available signed Balance Sheets of the Company;
    • CTC of Board Resolution passed by the company for making petition to NCLT to make
    • appeal against the order of Registrar;
    • Affidavit verifying petition;
    • Copy of bank draft evidencing payment of application fee;
    • Memorandum of appearance.

 

  1. Service of Appeal / Application

A copy of the appeal or application shall be served by the company to the Registrar and on such other persons as the Tribunal may direct, not less than fourteen days before the date fixed for hearing of the appeal or application.

 

  1. Passing of Order

Upon hearing the appeal or the application or any adjourned hearing thereof, the Tribunal may pass appropriate order, as it deems fit.

 

  1. Where the Tribunal makes an order restoring the name of a company in the register of companies, the order shall direct that-
    • The appellant or applicant shall deliver a certified copy to the Registrar of Companies within thirty days from the date of the order;
    • On such delivery, the Registrar of Companies do, in his official name and seal, publish the order in the Official Gazette;
    • The appellant or applicant do pay to the Registrar of Companies his costs of, and occasioned by, the appeal or application, unless the Tribunal directs otherwise; and
    • The company shall file pending financial statements and annual returns with the Registrar and comply with the requirements of the Companies Act, 2013 and rules made there under within such time as may be directed by the Tribunal.

 

 

44 thoughts on “Restoration Of Name Of A Struck Off Company Under Companies Act, 2013

  1. MCA rejected the application under Section 8 in RUN saying that the name proposed is similar to the name struck by ROC and requested for re-submission with fresh name. What is the present Rules similar to the Companies (Name Availability) Rules 2011 under the Companies Act, 2013.

    1. Please note that Rule 8 of the Companies (Incorporation) Rules, 2014 under the Companies act, 2013 governs the provisions for determining undesirable names of Companies/LLPs. It states that the proposed name of the company shall not be identical to the name of a company which has been struck off in pursuance of action or under Section 560 of the Companies Act, 1956 and a period of 20 years has not elapsed since the date of publication of its name being so struck off in Official Gazette.

  2. Dear Sir,

    My company has not filed MCA returns for last 2 years. It was served a notice on 11/05/2018 for filing representation within 30 days. We filed the representation for revival on 04/06/2018 with relevant documents as required by them in the mail. Nothing has happened since then. Reminders/phone calls are either not being answered or giving misleading replies (such as contact so and so advocate, he will settle things). My company is showing “Under process of strike off” since 17/05/2018, the day we received the notice.

    Kindly advise what we should do.

  3. sir, our company incorporated in april 2010. we are real estate comany. and we had operations of purchasing and sellling land. till now no roc filings done. recently we filed income tax filing for 2015-16 and 2016-17. for 2017-18 we have not filed income tax returns. we have bank accounts running and there are transactions also. our company was struck off by roc. we have not received any notice from roc. our bank account was made inoperative by instructions from roc. except this we dont have any communication from roc. now we observed in the website that name was struck off. can we go for restoration by filing appeal?? if so, in the form they are asking the roc communication number and date? how to fill that data? pls guide us.

    1. In accordance to Section 252 of Companies Act 2013, any company aggrieved by the order can appeal to the tribunal for restoration of name of company within 3 years from the date of passing the orders.
      For individual specific query, we request you to kindly seek professional advice.

  4. a director is director in 4 companys out of which 2 are active and foe 1 company we did cods and other is strike off what should be done to remove his status as disqualified permanently from the active companies too

  5. I have a company that had no operations since 2001, and no taxes were filed. The company is under the process of being struck off. I don’t care that it gets struck off. Is there anything that i should be worried about?

    1. As per the given facts, the company is being struck off u/s 248(1). Please note that as per this, the directors will be disqualified for 5 years and also the liability, if any, of every director, manager or other officers may arise as per Section 248(7) even if it is struck off.

  6. While we initiate steps to restore the strike -off company with NCLT, will the DIN of directors remain valid even after 31.03.2018- please advise

  7. Sir company incorporation date 2010 approx and we filled every year income tax return but roc return not fill by cs and we are not aware and roc struck off the company we have nothing in the company presently we have property in this company but we sale before struck off and paid all payment to debtors before struck off what should we do we should go to nclt for revival or not and if we go to nclt what penalty should be paid to nclt.sir i want to fill my return in roc aur kisi tarike se fill kar kar sakta hu strike off hote hue bhi

  8. can deceased aplicant avoid his liability at the time of making aplication of revival of company before nclt

    1. NCLT may pass an order to deposit certain amount towards PM National Relief Fund along with the order for restoration. Payment can be made through any bank. After this, certified copy of NCLT order and receipt of depositing Rs. 30K towards PMNRF will be delivered to ROC in physical. ROC will then activate the status of the Company on MCA portal. The company is then required to file form INC-28 and do all other outstanding filings which were due before striking off.

  9. Our Company has not filed any Financial statement with the ROC since its incorporation in 2006.Now the status of the company is “Under process of striking off”..So Whats the procedure to make its status active?

    1. We are little surprised that the company has not been struck off yet. Anyways, you are required to immediately file a reply to the respective ROC within 30 days of publication of notice with all the documentary proofs evdencing that your company was in operation

  10. The company was published in 1985 and its last return was paid in 1992 now the company name is struck off, so I also have to do the same procedure?

      1. Hi Sir,
        I really appreciate your work and am very thankful to you, i have a question i.e how can i make the payment NCLT and i need the above mentioned drafts wherer can i get them?

        Thank You

        1. As per the schedule of fees given in NCLT Rules 2016, The fees of INR 1000 is to be deposited in form of Indian Postal order or Bank draft (as per Rule 112 of NCLT Rules, 2016) with NCLT at the time of making an appeal.

Leave a Reply

Your email address will not be published. Required fields are marked *


Please Fill All Field