Procedure to Restoration of Name of Struck off Company by National Company Law Tribunal

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TANUJ CHANDRA SAXENAA | Sep 16, 2021 | Views 325926

Procedure to Restoration of Name of Struck off Company by National Company Law Tribunal

Procedure to Restoration of Name of Struck off Company by National Company Law Tribunal

As per Section 248(1) of Companies Act 2013 the Registrar has the power to strike off the name of the Company, consequently, it had struck off various companies in India and also in process to strike off other companies, which fulfils the conditions as mentioned under Section 248(1).

Now, the important thing comes how one can restore the name of the Company which has been struck off by the Registrar of Companies:-

Step 1: Check the master data at www.mca.gov.in or check the list of struck off companies as issued by the Registrar of respective state from time to time;

Step 2: Draft the application and affidavit for restoration of name of Company as per Section 252 of Companies Act, 2013 and NCLT (Amendment Rules 2017) along with below mentioned annexure:-

  • List of Directors;
  • Signed Copy of Memorandum & Article of Association;
  • Copy of Notice (STK-7) of Registrar as issued for striking of Companies;
  • Board Resolution for making application for restoration;
  • Signed Financial Statements since the Company did not make annual filing with Registrar of Companies;
  • Latest Bank Statement and signed by the bank official;
  • Signed Copy of Latest ITR Acknowledgement;
  • Copy of Vakalatnama in case of Advocate/Memorandum of Appearances in case of Practising Professional i.e. CA/CS/CMA;
  • Copy of proof of dispatch of an advance copy of application for restoration to concerned Income Tax Office and Registrar of Companies;
  • Fees of Rs. 1000-: Mode of payment of fees: DD/Online payment

Step 3: The above mentioned application can be made by the Directors/Members/ Creditors or any person aggrieved by an order of the Registrar in respect of struck off Company;

Step 4: After sending the copy of application to Income Tax Office and Registrar, the application shall be filed electronically with NCLT;

Step 5: The applicant shall take two copies of application, one is original and other is certified true copy along with acknowledgement of e-filing;

Step 6: To submit above mentioned sets of application with NCLT having jurisdiction to restoration of name of struck off company;

Step 7:Attend the hearing at NCLT and give facts that the Company is in operation and active;

Step 8: The NCLT issue the order and it shall be filed with Registrar within 30 days from the date of receipt of order;

Step 9: After the master data of Company is active then file annual filing forms along with additional fees;

Step 10: At the end, the Registrar restored the name of the struck off Company.

Rule 87A of the NCLT (Amendment) Rules, 2017:-

An Appeal or application under sub-section (1) and (3) of Section 252 of the Companies Act, 2013 may be filed before the NCLT in Form No. NCLT 9.

CHECKLIST FOR RESTORATION OF THE NAME OF STRUCK OFF COMPANY

Steps Particulars Corresponding Section/Rule, Provisions & Documents required
1 Filing of Appeal or Application to NCLT Section 252(1) & 252 (3) of the Companies Act, 2013

Rule 87A of NCLT Rules, 2016

Appeal or Application in Form NCLT-9 along with the following attachments:-

  • Affidavit Verifying the Petition in Form NCLT-6
  • MOA & AOA of the Company
  • Demand Draft evidencing payments of application fees
  • Memorandum of Appearance in Form NCLT-12
  • Board Resolution
  • Power of Attorney
  • Latest Audited Balance Sheet

– At least 14 days before the date of hearing, a copy of the appeal or application shall be served on the Registrar or any other persons as the NCLT may direct.

– Upon hearing the appeal or application NCLT may pass appropriate order.

2 File E-form INC-28 File E-form INC-28 to the ROC within 30 days from the date of order of NCLT.

Attachments: Certified copy of the Order passed by NCLT.

3 Fresh certificate of incorporation
  1. On receipt of the order, the ROC shall publish the order in the Official Gazette and issue a fresh certificate of incorporation.
  2. The appellant or applicant do pay the ROC his costs of, and occasioned by, the appeal or application, unless the NCLT directs otherwise.
  3. The Company shall file pending financial statements and annual returns with the ROC and comply with the requirements of the Companies Act, 2013 and rules made there under within such time as may be directed by the NCLT.

 PETITION FORMAT

FORM NO. NCLT. 9

BEFORE THE NATIONAL COMPANY LAW TRIBUNAL

BENCH, AT_____________

COMPANY PETITION NO ______OF 20___

IN THE MATTER OF COMPANIES ACT, 2013, SECTION 252(1)/252(3)

FOR RESTORATION OF THE NAME OF THE COMPANY

AND

IN THE MATTER OF _______LIMITED

MOST RESPECTFULLY SHOWETH:

Details of Application/ Petition:

Particulars of the applicant/ petitioner/ appellant:
i. Name of the applicant/ petitioner/ appellant
ii. Address of registered office of the applicant/ petitioner/ appellant
iii. Address of service of all notices
iv. Telephone/Fax Number and e-mail address, if any
Particulars of the respondent(s):
i. Name of the respondent(s).
ii. Office address of the respondent(s).
iii. Address of respondent(s) for service of all notices.
iv. Telephone/Fax Number and e-mail address, if any.

 APPLICATION /PETITION/ APPEAL IN THE FORM OF AFFIDAVIT UNDER SECTION 252(1)/252(3) OF THE ACT FOR THE RESTORATION OF THE NAME OF THE COMPANY

I, ____________,S/o ________R/o__________ solemnly affirm and say as follows:

  1. I am the director ____________of the above named company, and I have been a director of the company since___201___.
  2. I have read the petition now shown to me and state that the statements made in all paragraph thereof are correct and true to my knowledge.
  3. Facts of the order against which appeal or review is filed:

The facts of the case are given below: (give here a concise statement of facts and other grounds in a chronological order, each paragraph containing as neatly as possible as separate issue, fact or otherwise).

  1. Jurisdiction of the Tribunal: The applicant/ petitioner/ appellant declares that the matter ofapplication/petition/ appeal falls within the jurisdiction of the National Company Law Tribunal at______.
  2. Limitation.- The applicant/ petitioner/ appellant further declares that the application/petition/ appeal is within the limitation as prescribed in the provision of section 252 read with section 433 of the Companies Act, 2013.
  3. Matter not pending with any other Tribunal etc. – The applicant/ petitioner/ appellant further declares that the matter regarding with this application/ petition/ appeal has been made is not pending before any Tribunal of law or any other authority or any other Tribunal.
  4. Particulars in respect of the fee paid in terms of the Schedule of Fees of these rules.-
  5. Amount of fees_______
  6. Name of the Bank on which Demand Draft is drawn or Online Payment is made______
  7. Demand draft number________
  8. Details of Index- An index containing the details of the documents to be relied upon is enclosed.
  9. List of enclosures- attach as per index of documents.
  10. It is therefore prayed that directions may please be given:
  11. Relief(s) sought.- In view of the facts mentioned in paragraph 3 above, the applicant/ petitioner/appellant prays for the following relief(s) (Specify below the relief(s) sought explained the grounds for relief(s) and the legal provisions, if any, relied upon).

Relief may be drafted in the following way: In view of the facts mentioned above the applicant/petitioner/appellant prays for the following relief(s):

  1. Pass appropriate order directing the respondent to restore the name of the Company in the register with the immediate effect in the terms of Section 252(1)/252(3) of the Companies Act, 2013:
  2. Pass order in term of Section 252(1)/252(3) of the Companies Act, 2013, that is just and appropriate placing the Company and all other persons in the same position as nearly may be as if the name of the Company has not been struck off;
  3. Pass such other and further orders as this may deem fit and proper in the facts and circumstances of the case.
  4. Interim order, if prayed for– Pending final decision of application/ petition/ appeal, the applicant/ petitioner/ appellant prays for the following interim relief: (Give here the nature of the interim relief prayed for with reasons)

Dated this …………day of ………. 20…..

(Signature of the applicant/ petitioner/ appellant)

Solemnly affirmed before me at _____ on this (month) … day of …. 20…..

(signature)

 FORM NO. NCLT. 6

BEFORE THE NATIONAL COMPANY LAW TRIBUNAL

BENCH, AT_____________

COMPANY PETITION NO ______OF 20___

IN THE MATTER OF COMPANIES ACT, 2013, SECTION 252(1)/252(3)

FOR RESTORATION OF THE NAME OF THE COMPANY

AND

IN THE MATTER OF _______LIMITED

 

GENERAL AFFIDAVIT VERIFYING PETITION

I,______S/o of Shri____ , aged_____ residing at_______ , do solemnly affirm and say as follows:

  1. I am a director/secretary/______ ./of_____ Limited, the petitioner in the above matter and I am duly authorised by the said petitioner to make this affidavit on its behalf.
  2. The statements made in paragraphs _____of the petition herein now shown to me are true to my knowledge, and the statements made in paragraphs____ are based on information, and I believe them to be true.

For_____________

Director

(Deponent)

Date:

Place:

Verification

I hereby verify that this declaration is true and that nothing material has been concealed there from and that no part of it is false.

For_____________

Director

(Deponent)

Date:

Place:

————————–

 FORM NO. NCLT. 12

MEMORANDUM OF APPEARANCE

To

The Registrar,

National Company Law Tribunal,___________ Bench,

In the matter_______________ Petitioner.

V.

__________________________Respondent

Sir,

Please take notice that I, ____________, Company Secretary in practice/ practising Chartered Accountant/practising Cost Accountant, duly authorised to enter appearance, and do hereby enter appearance, on behalf of _____________ petitioner/ opposite party/ Registrar/ Regional Director/ Government of ______________in the above-mentioned petition.

*A copy of the resolution passed by the Board of Directors authorising me to enter appearance and to act for every purpose connected with the proceedings for the said party is enclosed, duly signed by me for identification.

Yours sincerely,

Practicing Company Secretary

(Name)

Dated ………. day of ……………

Address:

Tel No.:

Enclosure: as aforesaid

 CERTIFIED TRUE COPY OF DRAFT BOARD RESOLUTION

(On the Letter head of the Company)

CERTIFIED TRUE COPY OF THE RESOLUTION PASSED BY THE BOARD OF DIRECTORS OF ______________________________(Name of Company) AT ITS MEETING HELD ON _____DAY, _______, AT ITS REGISTERED OFFICE AT _______________________________________, AT _______ A.M

RESOLVED THAT the consent of the Board of Directors of the Company be and is hereby accorded to make an application/appeal to the Registrar of Companies________ (Name of ROC) under the provisions of Section 248 & 252 of the Companies Act, 2013 for strike off the name of the Company/restoration of name of the Company.

RESOLVED FURTHER THAT Mr/Ms____________Company Secretary in practicing and Director of the Company be and is/are hereby severally/jointly authorized to sign and give any information, clarifications, explanations and to do all acts and deeds as may be required under the Companies Act, 2013, to implement the above said resolution.

CERTIFIED TRUE COPY

For ________________

Director

(Name of Director)

DIN_______

Address_________

  POWER OF ATTORNEY

 I,________________S/O Shri _______________R/O _________________________on behalf of __________________________(Name of Company) as director do hereby authorize Mr/Ms____________________practicing company secretary (Membership Number_________& certificate no.___________) whose specimen signature is attested below to be my true and lawful attorney to file petition under Section 248 & 252 of the Companies Act, 2013 before the office of Hon’ble National Company Law Tribunal, (city of Tribunal) and to enter appearance in the said application/appeal and do necessary acts on my behalf, file replies either written or verbal and to act for every purpose connected with the proceedings of the said application/appeal under Section 248 & 252 of the Companies Act, 2013.

IN WITNESS WHEREOF, I have signed on this ______day of __________20___ at______.

In the presence of For
1. Sign, name & address Director
Name
2. Sign, name & address DIN:-
Company Secretary in Practice
Name
M. No. & C.P. No.

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