Allowed

Mohan Thomas v. M/S.Etham Foloriex Limited

Kerala HC7 Nov 2016Co.Pet/32/2016

Case brief

AI extract

What is this about?

The Kerala High Court allowed a petition to restore a struck-off company under Section 560(6) of the Companies Act, 1956. The court held that members voluntarily exiting via SES can later claim aggrievement if new business opportunities arise. The company was restored subject to nominal costs and a directive to file consolidated annual returns without penalty.

What did the court decide?

Restoration of the company name to the register ordered; petitioner to pay Rs.35,000 costs to ROC; company to file consolidated annual returns for the defunct period without penalty.

Mohan Thomas Vs M/S.Etham Foloriex Limited — Company and Corporate | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM (ORIGINAL JURISDICTION)

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IN THE MATTER OF THE COMPANIES ACT, 1956 AND IN THE MATTER OF M/S.ETHAM FLORIEX LIMITED

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COMPANY PETITION No.32/2016

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BEFORE:

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THE HONOURABLE MR.JUSTICE ALEXANDER THOMAS

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MONDAY, THE 7TH DAY OF NOVEMBER 2016/16TH KARTHIKA 1938

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PETITIONER:

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MOHAN THOMAS, S/O.OOMMEN THOMAS, 17/243, VADACODE.P.O, KANGARAPADY, KAKKANAD-682 021.

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-Vs.-

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RESPONDENTS:

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1. M/S.ETHAM FLORIEX LIMITED, NO.6, FORBES BUNGALOW, VELI ROAD,

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FORT COCHIN, COCHIN-682 001, REPRESENTED BY ITS EX-DIRECTOR SMT.SHEILA THOMAS.

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2. SRI.P.T.SUNNY, PEKKUZHIYIL HOUSE, MEEMUTTY POST, KODENCHERRY, PIN-673 580.

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3. THE REGISTRAR OF COMPANEIS, KERALA, OFFICE OF THE

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REGISTRAR OF COMPANEIS, 1ST FLOOR, COMPANY LAW BHAVAN, B.M.C ROAD, THRIKKAKARA.P.O, KAKKANAD, KOCHI-682 021.

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Company Petition under Section 560 (6) of the Companies Act, 1956 read with Rule 11(a) (21), Rule 92 to 94 and under Rule 9 of the companies (Court) Rules 1959 filed by the petitioner above named praying for an order that:

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A. notice of the petition may be ordered to all Respondents including Registrar of Companies, Kerala;

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B. orders may be passed in the interest of justice to restore the name of the 1^st Respondent in the register maintained by the Registrar of Companies kept in the office of the 3^rd Respondent;

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P.T.O

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-: 2 :-

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C. permit the petitioner to file on behalf of the Company the audited balance sheet and profit and loss account and all related documents under the Companies Act, 2013 from the financial year 2014-2015 onwards;

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D. the 1^st respondent and 3^rd Respondent may be directed to comply the provisions of Rule 93 of the companies (Court) Rules 1959, on receipt of the order of the Court restoring the name of the 1^st Respondent company in the register maintained by the Registrar of Companies; and

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E. such other order as deemed necessary to be passed in the circumstances of the case.

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This Company Petition coming on for orders on this day upon hearing M/s.D.PEETHAMBARAN, K.SREEKUMAR,S.M.AMEERUL MILLATH and ABID MILLATH, Advocates for the petitioner and Sri.DAYASINDHU SHREE HARI.N.S, Advocate for the R1 and R.2 and Sri.T.V.VINU, Central Government Counsel for R.3, the court delivered the following:

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bala

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P.T.O

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COMPANY PETITION No.32/2016

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ANNEXURE A-1 TRUE COPY OF THE CERTIFICATE OF INCORPORATION OF M/S.ETHAM FLORIEX LIMITED DATED 3.11.1995

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ANNEXURE A-2 TRUE COPY OF ANNUAL RETURN OF M/S.ETHAM FLORIEX LIMITED MADE UP TO 30.9.2002

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ANNEXURE A-3 TRUE COPY OF MEMORANDUM OF ASSOCIATION OF M/S.ETHAM FLORIEX LIMITED

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ANNEXURE A-4 TRUE COPY OF ARTICLES OF ASSOCIATION OF M/S. ETHAM FLORIEX LIMITED

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ANNEXURE A-5 TRUE COPY OF THE 1ST RESPONDENT COMPANY'S MASTER DATA EXTRACTED FROM THE WEBSITE OF MINISTRY OF CORPORATE AFFAIRS

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ANNEXURE A-6 TREU COPY OF THE BUSINESS AGREEMENT DATED 15.4.2003 BETWEEN 1ST RESPONDENT COMPANY AND M/S.FLOWERS AND FLAVOURS

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ANNEXURE A-7 TRUE COPY OF LETTER DATED 30.4.2016 ISSUED TO THE 1ST RESPONDENT COMPANY BY SRI.P.T.SUNNY FOR M/S.FLOWERS AND FLAVOURS TO THE PETITIONER PROPOSING REVIVAL OF BUSINESS AGREEMENT

bala

ALEXANDER THOMAS, J.

C.P.No.32 Of 2016

Dated this the 7th day of November, 2016.

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The petitioner herein was one of the promoter directors and contributory of the 1st respondent company M/s.Etham Floriex Limited (referred to hereinafter for short as 'the company') at the time of its incorporation. The company was duly registered with the Registrar of Companies, Kerala (ROC), on 3.11.1995 as a Public Limited Company with paid up capital of Rs.7,000/- and authorised capital of Rs.2 Lakhs. The company had duly submitted its returns up to 30.9.2002 and had later filed Anx.R-3(a) application on 30.12.2003 requesting the 3rd respondent-ROC to strike off the name of the company from the register maintained by the ROC by Simplified Exit Scheme (SES) by virtue of the enabling provisions under Sec.560(5) of the Companies Act, 1956. The 3rd respondent-ROC had accepted the said application and by Serial No.76 of Anx.R-3(b) Gazette notification dated 4.3.2006 had struck off the name of the company from the register as can be seen from internal page 3 of Anx.R-3(b) notification. The present application is one filed by the petitioner who was the promoter director and contributory, by

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taking recourse to the provisions under Sec.560(6) of the Companies Act, 1956, praying to restore the company on the ground that there was a prior contract with a foreign company based at UAE, and if therefore the company is revived, then it is likely to prosper in its proposed business activities. The 3rd respondent-ROC has filed a counter affidavit. However, it has been made clear therein that in the event of allowing the prayer of the petitioner, then two pre-conditions are necessary for such restoration, viz., firstly, that heavy cost should be imposed on the company as has been done in similar cases as in Anxs.R-3(c) and R-3(d) judgments of this Court and secondly, that under Sec.560(7) of the Companies Act, 1956, the company shall be deemed to have been in existence as if its name had not been struck off once it is restored and that hence during those defunct periods, the returns will have to be filed, etc. The petitioner had filed reply affidavit stating that the aspect relating to costs is a matter within the discretion of the Court and further pleading that since the paid up capital of the company is quite low, the cost, if any, may be lowered at the discretion of the Court. As regards the submission of annual returns of the company for the period from the striking off the name of the company up to the date of revival, it is pointed out that Sec.560(6) of the

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Companies Act, empowers the Court to give such direction and make such provisions as may be seem just and proper for placing the company and all other persons in the same position as nearly as may be as if the name of the company has not been struck off.

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Heard Sri.P.B.Krishnan, learned counsel, instructed by Sri.K.Sreekumar, learned counsel appearing for the petitioner, and Sri.T.V.Vinu, learned Central Government Counsel appearing for the 3rd respondent. Respondents 1 & 2 have filed their affidavits supporting the pleas of the petitioner.

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Sec.560(6) of the Companies Act, provides as follows:

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“Sec.560. Power of Registrar to strike defunct company off register.-

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xxx xxx xxx

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(6) If a company, or any member or creditor thereof, feels aggrieved by the company having been struck off the register, the Tribunal on an application made by the company, member or creditor before the expiry of twenty years 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.”

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It is clear from a reading of sub-section (6) of Sec.560 that if the court

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is satisfied that the company was, at the time of striking off, carrying on

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the business or was in operation or otherwise that it is just be restored

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to the register, then the court may order that the name of the company be restored to the register, etc. Sec.247(6) of the Indian Companies Act, 1913 (which governed the field prior to the enactment of the Companies Act, 1956) provided as follows:

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“Sec.247 : Removal of defunct companies from register.-

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xxx xxx xxx

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(6) If a Company or any member or creditor thereof feels aggrieved by the company having been struck off the Register, the Court on the application of the Company or member or creditor, may, if satisfied that the Company was, at the time of striking off, carrying on business or in operation or otherwise that it is just that the company be restored to Register, order that the name of the Company to be restored to the Register and thereupon the Company shall be deemed to have continued in existence as if its name had not been struck off, and the Court 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.”

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Going by the nature of the pleadings and the materials on record, the petitioner does not have a strong case that the company was actually carrying on any business at the time of its striking off. Construing the above said provisions contained in Sec.247(6) of the Indian Companies Act, 1913, the Indore Bench of the Madhyabharath High Court in the case Bhogilal Chimanlal v. Registrar of Joint Stock Companies, M.B.Gwalior, reported in AIR 1954 M.B 70 (Vol.41, C.N.42) held that the Court can order restoration of the name of the company removed from the

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register, if it finds that it was at the time of the order, doing business or was in operation or on the ground that it is just to do so, etc. Construing the scope and ambit of the expression “company was in operation”, the said High Court in para 6 of the above said decision held as follows:

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“(6). In this case, Mr.Chaphekar for the Petitioner contended firstly, that on the date of the order, the Company should be deemed to be in operation as it was actually contesting a suit before the Civil Judge at least at the time when information was sought by the Registrar whether it was in operation in 1950 and 1951. Secondly, even if it be not held to be in operation it was just that its name be restored to the Register of Companies as the Company did not discharge all its obligations and the entire share capital limiting the liability of the shareholders was not called and subscribed. He relied upon - Surjin Das Vs. Chabba Cotton Co.- AIR 1925 Lahore 443 (A) and Halsbury's Laws of England, Vol. 6 Art. 887 to contend that mere cessation of business does not mean that the Company was not in operation. It would on authorities, appear that even after the closure of business, if the proceedings of winding up are going on, it is deemed to be in operation. There is no reason then to suppose that it was not in operation when it was actually contesting a suit as an existing Company. There is considerable force in this contention of the Learned Counsel for the Petitioner. The Company, if it is operating as a Company for doing something in relation to its past obligations or to avoid future pecuniary liability, it will be deemed to be in operation.”

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This Court is in concurrence with the said view expressed

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in the above said judgment of the Indore Bench of the Madhyabharath High Court and it is only to be held that mere cessation of business does not mean that the company was not in operation and it would appear that even after the closure of the business, if the proceedings of winding up are going on, it is deemed to be in operation and there is no reason that it was not in operation when it was actually doing something in

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relation to past obligations or to avoid future pecuniary liability in which case the company should be deemed to have in operation even if the company was not actually carrying on business.

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On the undisputed facts of this case, it would appear that Anx.A-6 dated 15.4.2003 is the agreement entered into by the respondent company with a foreign company based at UAE envisaging business transaction between the two. Further it can be seen that all the annual returns of the company have been duly filed and the last such annual return was filed on 30.9.2002 which fact is admitted in the affidavit filed by the Registrar of Companies. Therefore, even if it is taken that the company was not in active business at the time of the application for striking off the name of the company under voluntary exit scheme, it is only to be held that the act of the company in filing its last return on 30.9.2002 before it had submitted Anx.R-3(a) application dated 13.12.2003 under the Simplified Exit Scheme would clearly show that the company was consciously doing some actions in order to avoid any future pecuniary liability as otherwise non-submission of the return would even invite criminal prosecution apart from physical penalty as per the mandatory provisions of the Companies Act, 1956. Therefore, this conscious act done by the company to avoid future

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pecuniary liability is something which clearly goes to show that the company was in operation even if it was not fully carrying on its business. It is the specific case set up by the petitioner as supported by contesting respondents 1 & 2 that a foreign company based at UAE has now shown keen interest to revive its earlier business as evidenced by Anx.A-7 letter dated 30.4.2016 issued by the said foreign company. According to the petitioner and respondents 1 & 2, they are of the bonafide belief that a major turn around in its business activities can be brought down by fortifying the previous relationship with the foreign company as can be seen from Anx.A-6 dated 15.4.2003 and Anx.A-7 dated 30.4.2016. The said pleas made by the petitioner are not in any way seriously controverted by the 3rd respondent and it is fully supported by respondents 1 & 2. In the light of these facts and circumstances, it is only to be held by this Court that these aspects would constitute sufficient aspects for justifying the application for restoration of the company on the ground that it is only just and fair that the company be restored to the register as envisaged in sub-section (6) of Sec.560 of the Companies Act, 1956.

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Further a specific contention was raised by the 3rd respondent-ROC that the company had taken recourse to the SES as per

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Ext.R-3(a) which is a voluntary option chosen by the company and that therefore the petitioner cannot be said to be a person who is “aggrieved” of Anx.R-3(b) striking off notification as understood in Sec.560(6) of the Companies Act, 1956. In this connection it is to be noted that Anx.R-3(a) Scheme is only formulated by virtue of the enabling provisions contained in Sec.560 of the Act and even if Simplified Exit Scheme has been voluntarily chosen by the persons at the helm of affairs of the company, that by itself will not take away the right of such persons to approach this Court under Sec.560(6) of the Companies Act, 1956, within the prescribed period of 20 years if they make out a ground as understood within the broad scope of that provision for restoration of the company. True, that such persons like the petitioner and respondents 1 & 2 would not have been initially aggrieved by Anx.R-3(b) striking off notification inasmuch as the same had culminated based on the voluntary choice made by them by submitting Anx.R-3(a) application under the said Scheme. At a later point of time due to developments as the one happened in the instant case, such persons may have second thought regarding the striking off of the company and may have actively contemplated for restoration of the company for bonafide business purposes and in such case, so long as

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such persons can bring out sufficient grounds as envisaged under Sec.560(6) of the Act, the mere fact that they have chosen the voluntary exit scheme, will not by itself constitute any ground to disentitle them to seek that remedy under that provision. The expression “aggrieved” person as understood in Sec.560(6) of the Companies Act is not to be narrowly construed as contended by the respondent-ROC. In para 39 of the ruling in the case Jasbhai Motibhai Desai v. Roshan Kumar, Haji Bashir Ahmed reported in (1976) 1 SCC 671 the Apex Court has held as follows:

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'39. To distinguish such applicants from “ strangers ”, among them, some broad tests may be deduced from the conspectus made above. These tests are not absolute and ultimate. Their efficacy varies according to the circumstances of the case, including the statutory context in which the matter falls to be considered. These are: Whether the applicant is a person whose legal right has been infringed? Has he suffered a legal wrong or injury, in the sense, that his interest, recognised by law, has been prejudicially and directly affected by the act or omission of the authority, complained of? Is he a person who has suffered a legal grievance, a person

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“ against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something, or wrongfully affected his title to something? ”

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Has he a special and substantial grievance of his own beyond some grievance or inconvenience suffered by him in common with the rest of the public? Was he entitled to object and be heard by the authority before it took the impugned action? If so, was he prejudicially affected in the exercise of that right by the act of usurpation of jurisdiction on the part of the authority? Is the statute, in the context of which the scope of the words “person aggrieved” is being considered, a social welfare measure designed to lay down ethical or professional standards of conduct for the community? Or is it a statute dealing with private rights of particular individuals?'

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The provisions contained in sub-section (6) of Sec.560 of

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the Companies Act, 1956, makes a liberal provision enabling the making of an application by the company, member, or creditor, before the expiry of 20 years of the publication in the official Gazette of the notice of its striking off from the register and if the competent court if satisfied that the company was at the time of striking off carrying on business or was in operation or otherwise that it is just that the company be restored to the register, is empowered to order the restoration of the name of the company to the register, etc. When the striking off is made on the basis of the voluntary exit scheme, opted by the company or its members, then ordinarily they may not have any grievance at the time of issuance of the order regarding the striking off the name of the company as the said action is taken on the basis of the voluntary option made by such applicants. To determine whether such persons can be said to be “aggrieved persons” as understood broadly within the scope of Sec.560(6) of the Companies Act, the same is to be evaluated in the context of the object sought to be achieved by the provisions of Sec.560(6). The said object is quite liberal in nature and enables the persons mentioned therein to make an application within the expiry of long period of 20 years from the date of initiation of

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striking off the name of the company on the basis of such prayer for restoration can be maintained are also should be on the ground that the company was carrying on business or in operation at the time of striking off or otherwise it is just that the company be restored to the register, etc. Therefore, if within the period of 20 years as permitted within the provisions under Sec.560(6), if the persons, who are envisaged in that Section, have a bonafide case for restoration of the company on any of the three grounds mentioned in Sec.560(6), then such a person can be said to be a person who is “aggrieved” as understood broadly within the wide provision contained in ec.560(6), even if the application for striking off of the company was made on the voluntary option of such a person by taking recourse to the voluntary exit scheme for striking off. Therefore, the said contention raised on behalf of the respondent-ROC that the petitioners cannot be said to be a person who is “aggrieved” as understood within the ambit of Sec.560(6) is not sustainable. Therefore, the said objection raised by the 3rd respondent-ROC will also stand overruled. In the light of these aspects, it is held that the petitioner is entitled to succeed with his plea for restoration of the name of the 1st respondent company in the Register of Companies.

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The next aspect to be considered is as to the plea made by the 3rd respondent that this Court should impose necessary conditions obligating the company to file annual returns for the entire period from the date of striking off application of the company up to the date of restoration. The Registrar of Companies is fully justified to make the plea that sufficient cost should necessarily be imposed on the petitioner if the prayer for restoration is to be allowed. In this regard, Sri.T.V.Vinu, learned Central Government Counsel appearing for the 3rd respondent would place strict reliance on Anx.R-3(c) judgment dated 11.12.2008 rendered by this Court in C.P.No.20/2008 as well as Anx.R3(d) judgment dated 30.3.2010 in C.P.No.12/2009. In Anx.R-3(c) judgment, the authorised capital of the company was Rs.10 Lakhs and its paid up capital was Rs.20,000/- and the company had consistently failed to make the annual returns from its incorporation on 1999 till 2006 when the Registrar of Companies has identified the company as completely defunct and had taken action to strike off the name of the company from the register after following due procedure. In Anx.R-3 (d) judgment also, the said company had also not consistently filed its annual returns, Balance Sheet and Profit & Loss Account for all the years and the Registrar of Companies was constrained to take action for

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striking off the name of the company. In the instant case, it is the common ground that the company had submitted its annual returns and had completed all the requisite formalities from the date of its incorporation in 1995 till the date of submission of the application for striking off. More importantly, the cited judgments are cases wherein the Registrar of Companies was constrained to take action for striking off due to the default of those companies whereas the instant company had duly adhered to all their obligations and had fulfilled all the requirements under the Companies Act and voluntarily chosen to seek the benefit of the voluntary exit scheme thereby leading to the striking off the name of the company. In the light of these aspects, the cost of Rs.50,000/- imposed in Anxs.R-3(c) and R-3(d) judgments need not be imposed in the instant case. Rule 94 of the Companies (Court) Rules, 1959, reads as follows:

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“Rule 94: Registrar's costs of petition.- Unless for any special reasons the Court shall otherwise order, the order shall direct that the petitioners do pay to the Registrar of Companies his costs of, and occasioned by, the petition.”

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Therefore, the 3rd respondent-ROC has the right to be paid the costs of, and occasioned by the petitioner. In the result, this Court is of the considered view that a cost of Rs.35,000/- would be eminently just and fair and it is so accordingly ordered. As regards the plea made by the

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3rd respondent-ROC that this Court should issue necessary directions obligating the company to file all the annual returns for the period from the date of striking off the name of the company up to the date of restoration, it is to be noted that sub-sec. (7) of Sec.560 of the Companies Act, 1956, essentially creates a legal fiction as it provides as follows:

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“Sec.560. Power of Registrar to strike defunct company off register.xxx xxx xxx

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(7) Upon a certified copy of the order under sub-section (6) being delivered to the Registrar for registration, the company shall be deemed to have continued in existence as if its name had not been struck off.”

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At the same time it should also be borne in mind that sub-sec. (6) of Sec.560 also clearly mandates that the Company Court or Tribunal as the case may be is empowered to give such directions and make such provisions as may 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. But in Anx.R-3(c) judgment, this Court had not imposed the said condition to the said company to file its annual returns during the periods from the striking off the name of the company up to the date of restoration whereas it was so ordered in Anx.R-3(d) judgment. Therefore, it is a matter essentially within the discretion of the Court. It is pointed out by the learned Central

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Government Counsel appearing for the 3rd respondent-ROC that even in cases covered by Sec.560(6) of the Companies Act, 1956, the company is obliged to file its returns during the periods from the date of striking off the name of the company up to the date of restoration and that for late submission of such returns the company is also legally obliged to pay fine as mandated in the provisions of the Act and the Central Government alone is the authority to waive such fine as per Sec.613 of the Companies Act. Sec.613 of the Companies Act, 1956, reads as follows:

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“Sec.613: Power of Central Government to reduce fees, charges, etc. (1) The Central Government may, by order notified in the Official Gazette, reduce the amount of any fee, charge, or other sum specified in any provision contained in this Act, as payable in respect of any matter, either to the Central Government or to any Registrar, any Additional, Joint, Deputy, or Assistant Registrar or any other officer of the Central Government; and thereupon such provision shall, during the period for which the order is in force, have effect as if the reduced fee had been substituted for the fee specified in such provision.

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(2) Any order notified under sub-section (1) may, by a like order, be cancelled or varied at any time by the Central Government.

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(3) Nothing in this section shall be deemed to affect the power of the Central Government under section 641 to alter any of the fees specified in Schedule X.”

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Sec.613 of the Companies Act, 1956, comes under Part XII

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of the said Act, which is captioned as “Registration offices and officers and fees”. Part XII consists of Sec.609 to Sec.614A. Sec.609 deals with registration offices, Sec.610 thereof deals with Inspection, production and evidence of documents kept by the Registrar, Sec.610A speaks about

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admissibility of micro films, facsimile copies of documents, etc., whereas Secs.611 and 612 deals with fess in Schedule X to be paid and fees, etc., paid to Registrar and other officers to be accounted for to Central Government. Sec.613 confers power of Central Government to reduce fees, charges, etc., Sec.614 deals with enforcement of duty of company to make returns, etc., to Registrar and Sec.614A deals with power of Court trying offences under the Act to direct the filing of documents with Registrar. The relevant clause in the Companies Bill which led to the enactment of Sec.613 disclose that the said provision is to confer in general the power on the Central Government to reduce any fee, charge or other sum specified in the Act as payable to the Central Government. This section generally deals with the power of the Central Government to reduce fees, charges, etc., payable to the Central Government, Registrar or to any other authority. In that regard the Central Government is empowered to issue orders or cancel or vary any order issued earlier by notification in the Official Gazette. Whereas the provisions contained in sub-sec.(6) of Se.560 authorises the Company Court/Tribunal while making orders in the matter of restoration of a company to give such direction and makes such provision as seem just for placing the company and all other persons in the same position as

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nearly as may be as if the name of the company had not been struck off. Therefore, the power in that regard while making orders of restoration of a company is exclusively conferred on the Court or Tribunal as the case may be in terms of Sec.560(6) and therefore empowers the Court to make necessary directions and provisions as are deemed just and fair by the Court/Tribunal 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, in terms of Sec.560(6). There is no question of the Central Government exercising any powers in that regard by taking resort to the provisions as per Sec.613, for such matters wherein it is for the Court to make order for restoration of the name of the company as per Sec.560(6) and those matters are within the exclusive zone of the Court/Tribunal in terms of Sec.560(6). On a consideration of the above plea of the respondent-ROC, this Court is of the considered view that the contention made on behalf of the 3rd respondent-ROC is untenable. It is a matter which is entirely within the discretionary zone of the Company Court to decide as to the nature of direction that is to be issued so as to make such provisions as may 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 as contemplated

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in sub-sec. (6) of Sec.560 of the Companies Act. The said power conferred on this Court will certainly give discretion to the Court to decide whether or not the company should be directed to file annual returns, etc., for the above said period and if so, whether the company is bound to pay any fine, etc., or to make necessary orders for waiving the fine, etc. In the instant case, as held hereinabove, the company had consistently fulfilled all the necessary norms in the Companies Act and the Rules framed thereunder and it was their voluntary decision to take recourse to the provisions contained in the Simplified Exit Scheme for striking off the name of the company. Therefore, if the company is now directed even to pay fine for non-submission of annual returns during the relevant time, it would amount to penalising a law abiding company, like the present applicant for not doing something which was impossible for performance as it was impossible for the company to submit annual returns during the above period as the company itself was struck off from the rolls of the ROC. In the result, the following orders are passed.

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i) The prayer of the petitioner for restoration of the company is allowed.

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ii) The petitioner shall pay cost of Rs.35,000/- (Rupees Thirtyfive Thousand only) to the 3^rd respondent-ROC forthwith.

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iii) An affidavit should be submitted by the petitioner and other

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authorised persons on behalf of the company certifying that the company has not done any business during the period of striking off from the register upto the revival and it may also be specified that no assets were acquired or disposed during the above said period.

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iv) After restoration of the company, the petitioner or other authorised officer of the company shall ensure that consolidated annual returns of the company is filed for the period after the submission of the last return on 30.9.2002 till the date of the restoration of the company. It is made clear that this is only a formal submission of returns by the petitioner for ensuring completeness of records of ROC and for this purpose the company shall not be made to suffer any payment of penalty or fine.

¶129

v) Under Rule 93 of the Companies (Court) Rules, 1959, the petitioner will deliver a certified copy of this judgment to the 3^rd respondent-ROC within 2 weeks from the date of receipt of a certified copy of this judgment and on such delivery the 3^rd respondent-ROC will take necessary action to advertise the order in the Gazette of the State.

¶130

vi) It is made clear that the petitioner shall pay cost of Rs.35,000/and also submit an affidavit as directed above to the 3^rd respondent-ROC at the time of submission of certified copy of this judgment.

¶131

With these observations and directions, the Company Petition

stands disposed of.

ALEXANDER THOMAS,

Judge.

bkn/-

Mohan Thomas v. M/S.Etham Foloriex Limited

Case brief

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Mohan Thomas v. M/S.Etham Foloriex Limited

Case brief

What is this about?

What did the court decide?

What the court decided

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