CS Vipin Kumar Mittal

CS Vipin Kumar Mittal

Keeping in view of the Section 248 to 252 of the Companies Act, 2013 (the Act), as notified by Ministry of Corporate Affairs (MCA) w.e.f. 26th December, 2016 and Rule 87A of the National Company Law Tribunal (NCLT) (Amendment) Rules, 2017 as notified by MCA w.e.f. 5th July, 2017, I have prepared a detailed process to Restore/Revive of name of the Struck Off Company.

Legal provisions related to Restoration of name of the struck off companies are given in Section 248 to 252 of the Act read with Rule 87A of the NCLT (Amendment) Rules, 2017 and the Companies (Removal of Name of Companies from the Register of Companies) Rules, 2016.

Relevant Sections & Rules of the Act:

Section 248: Power of Register to Remove Name of Company from Register of Companies

Section 252: Appeal to Tribunal

The Companies (Removal of Name of Companies from the Register of Companies) Rules, 2016

Rule 87A of the NCLT (Amendment) Rules, 2017 and NCLT Rules, 2016

As per Section 248(1) of the Act, Where the Registrar has reasonable cause to believe that-

(a) a company has failed to commence its business within one year of its incorporation; or

(b) a company is not carrying on any business or operation for a period of two immediately preceding financial years and has not made any application within such period for obtaining the status of a dormant company under Section 455 of the Act. He shall send a notice in Form STK 5 to the company and all the directors of the company, of his intention to remove the name of the company from the register of companies and requesting them to send their representations along with copies of the relevant documents, if any, within a period of thirty days from the date of the notice.

As per Section 248(2) of the Act, Without prejudice to the provisions of sub-section (1), a company may, after extinguishing all its liabilities, by a special resolution or consent of seventy-five per cent members in terms of paid-up share capital, file an application in Form STK 2 to the Registrar for removing the name of the company from 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 in Form STK 6.

Notice shall be placed on the website of MCA, published in the Official Gazette, published in a leading English language newspaper and at least once in a leading vernacular language newspaper.

As per Section 248(5) of the Act, 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 in Form STK 7 thereof in the Official Gazette, and on the publication in the Official Gazette of this notice, the company shall stand dissolved.

As per Section 252 (1) of the Act, 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 3 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 any of the grounds on which the order was passed by the Registrar, it may order restoration of the name of the company in the register of companies.

As per Section 252(3) of the Act, If a company, or any member or creditor or workman thereof feels aggrieved by the company having its name struck off from the register of companies, the Tribunal on an application made by the company, member, creditor or workman before the expiry of 20 years from the publication in the Official Gazette of the notice in Form STK 7 under Section 248(5) of the Act may, if satisfied that the company was, at the time of its name being struck off, carrying on business or in operation or otherwise it is just that the name of the company be restored to the register of companies, order the name of the company to be restored to the register of companies, and the Tribunal may, by the order, give such other directions and make such provisions 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.

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.

Further I have also prepared Petition format and other relevant Format of NCLT Form. Hope this article would be of some help for you all.

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

Ø 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.

Ø 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 Ø On receipt of the order, the ROC shall publish the order in the Official Gazette and issue a fresh certificate of incorporation.

Ø The appellant or applicant do pay the ROC his costs of, and occasioned by, the appeal or application, unless the NCLT directs otherwise.

Ø 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 thereunder 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).

4. 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______.

5. 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.

6. 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.

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7. Particulars in respect of the fee paid in terms of the Schedule of Fees of these rules.-

a. Amount of fees_______

b. Name of the Bank on which Demand Draft is drawn or Online Payment is made______

c. 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:

a. 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):

A. 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:

B. 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;

C. Pass such other and further orders as this may deem fit and proper in the facts and circumstances of the case.

b. 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:

Tele 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.

Practicing Company Secretary at New Delhi

(Author can be reached at csvipinmittal@gmail.com or at Ph: 9649224838)

Disclaimer: The entire contents of this article is solely for information purpose and have been prepared on the basis of relevant provisions and as per the information existing at the time of the preparation. It doesn’t constitute professional advice or a formal recommendation. The author has undertook utmost care to disseminate the true and correct view and doesn’t accept liability for any errors or omissions. You are kindly requested to verify & confirm the updates from the genuine sources before acting on any of the information’s provided herein above.

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6 responses to “Procedure for Restoration of Struck off Companies Under Companies Act, 2013”

  1. Anuj says:

    According me after name of the Company publish in STK-7, then company has been dissolved. In case of company has already been dissolved, how it is possible to call Board Meeting and pass a resolution for authorizing Company Secretary for application u/s 252.

  2. Deepak Jain says:

    Thank you Sir. As many of the companies name got struck off during the period july 2017. the Aggrieved Clients asked for such Restoration procedure.
    This is very useful Article

    1. Kindly Send the Appeal Documents in Word . Doc File
    2. Kindly advice the amount of Fees to be Paid for Delhi Company
    3. In whose favour the demand draft is payable

    CA Deepak Jain

  3. CA DIPAK KUMAR RANKA says:

    ould you please send these NCLT forms Details as word doc to my mail Sir?
    My mail Id is ranka.dipak@gmail.com.

    Thank you Sir.

    Reply

  4. CA Aruna Selvaraj says:

    very useful content Sir. Thank you Sir. As many of the companies name got struck off during the period july 2017. the Aggrieved Clients asked for such Restoration procedure constantly.
    This is very useful Article.
    I’m Aruna, Practicing Chartered Accountant in Chennai. Could you please send these NCLT forms Details as word doc to my mail Sir?
    My mail Id is caaruna2013@gmail.com.

    Thank you Sir.

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