PROCEDURE FOR RESTORATION OF COMPANIES
NAME DISSOLVED UNDER SECTION 248
OF THE COMPANIES ACT, 2013
NAME DISSOLVED UNDER SECTION 248
OF THE COMPANIES ACT, 2013
1.
Which is the concerned authority for restoration of companies dissolved under
section 248 of the Act?
A company dissolved
under section 248 can be restored on the Register of Companies by National
Company Law Tribunal (“Tribunal”) order.
2.
Who can make application?
The Company, Member or
Creditor, Workmen.
3.
Is there any time limit for making an application for restoration?
Such an application
must be made before the expiry of 20 years from the publication in the Official
Gazette of the notice of the striking-off.
The procedure for
making application to the Tribunal under section 252 of the Act is as under:-
Sr.
No.
|
Steps
|
Remarks,
if any
|
1.
|
Application to the Tribunal under
Section 252 (3) of the Act
|
Form No. NCLT-9
|
2.
|
Filing of application to the
concerned Registrar of Companies (“ROC”)
|
Not less than 14 days before the
date fixed for the hearing of the application.
|
3.
|
Documents required to be attached
with NCLT-9:
|
Form NCLT-6
Form NCLT-12
|
4.
|
Hearing at the Tribunal and
Tribunal may pass order for restoring the name of the company in the Register
of Companies
|
|
5.
|
A copy of the order passed by the
Tribunal shall be filed by the company with the Registrar
|
File Form INC-28 within 30 days
from the date of order.
|
6.
|
Publication of order in official
gazette by ROC.
|
DRAFT FORMAT
INDEX
SL. No.
|
Particulars
|
Annexures
|
Page Nos.
|
I
|
Notice of
Admission
|
---
|
|
II.
|
Company
Petition
With
Annexures:
|
---
|
|
1
|
Copy of
Memorandum and Articles of Association
|
Annexure-1
|
|
2.
|
Copy of
Notification dated ………..
|
Annexure-2
|
|
3.
|
Evidence
regarding payment of Fee
|
Annexure-3
|
|
4.
|
Affidavit
Verifying the Petition
|
Annexure-4
|
|
5.
|
Copy of Board
Resolution & Vakalatnama
|
Annexure-5
|
BEFORE THE
NATIONAL COMPANY LAW TRIBUNAL
………………… BENCH
Company Application No .......................................
of 20 ….
'in Company Petition No ....................................... of 20
….
NOTICE OF ADMISSION
Date: …..
From:
M/s. ……………… Private
Limited
Address …………….,
City - ………….
State: ……….
To
The Deputy Registrar
National Company Law Tribunal, …………. Bench.
The Parties above named request that the Tribunal grants the following
reliefs:
1. Allow the Company Petition
2. It is prayed that directions may
please be given, in the facts and circumstances stated above, it is humbly
prayed that this Hon’ble Tribunal may graciously be pleased to issue notice to
the Opp. Party and after hearing the parties allow the Company Petition
directing the Registrar of Companies, Odisha, Cuttack, Opp. Party to restore
the name of the Petitioner Company on the Register of Companies maintained by
the Registrar of Companies as if its name had not been struck off from the
rolls of the Register.
3. Pass such other order/orders
direction/directions as may deem just and proper in terms of Section 252(3) of
the Companies Act, 2013.
In terms of Sections 230 to 232 of the Companies Act, 2013 and Rule 15
of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016.
For the following Reasons
to be Recorded:
The
Registrar of Companies, …………… i.e. the Opp. Party herein, struck off the
petitioner company’s name of the Register due to defaults in statutory
compliances, namely, failure to file Financial Statements & Annual Return
for the period ………., …………., ………. & …………. Consequently, the Registrar of
Companies initiated proceedings under Section 248 of the Companies Act, 2013,
for the purpose of striking off the name of the company of the Register
maintained by the Registrar of Companies.
In support of the Petition, the Petitioners have attached an Affidavit
setting out the facts on which the Petitioners relies.
Name & Title of the Person signing on behalf of the Petitioners:
FOR, ……………..
………………………………
DEPONENT
Director,
DIN No. ………
Tel. No.: ……….
E-mail: ……
Company Petition No. ____________ of 2017
FORM NO. NCLT. 9
[See
rule 72, 76, 82, 84, 88 and 154 and also General Form
for
all purposes
if
no specific form is prescribed under these rules and Forms]
BEFORE THE NATIONAL COMPANY LAW TRIBUNAL
………………… BENCH
Company
Application No ............................ of 20 …
'in Company
Petition No ............................. of 20 ….
In the matter of: An application under- Section 252
of the Companies Act, 2013
And
In the matter of: An application seeking restoration of the name of the company on
the Register of Companies maintained by the Registrar of Companies, …….
And
In
the matter of: M/s.
………………. Private Limited,
A
company incorporated under the Companies Act, ………. and having its registered
office situated at: ……………………………...,
City - ………., State: …………….
Represented
through its Director Sri. ____________ (DIN: _______________)
…………Petitioner
Versus
Registrar
of Companies, ………
At-…………………, City - ………., State: …….
............Opp.
Party
Details of
Application/Petition:
The
humble petition of ……………… Private Limited, the petitioner above named
respectfully showeth:
Particulars
of the applicant/ petitioner/ appellant:
i. Name of the petitioner:
M/s.
………………. Private Limited
ii. Address of registered office of
the applicant/ petitioner/
appellant: …………………..., City - ……….,
State: …………….
iii.
Address of service of all notices: ……………………………..., City - ………., State: …………….
iv.
Telephone/ Fax Number and e-mail address, if any: …………
Particulars
of the respondent:
v. Name of the
respondent(s): Registrar of Companies, ………..
vi. Office address of
the respondent; ……………………………..., City - ………., State: …………….
vii. Address of
respondent for service of all notices:
…...…………………………..., City - ………., State: …………….
viii.
Telephone/Fax Number and e-mail address, if any. Phone:
……. - …………., Fax: ….-……, Email: ………………
Application
/Petition/Appeal in the form of affidavit under Section 252 of the Act for seeking restoration of the name of the company M/s. ……………. Private Limited, on the Register of Companies maintained by the
Registrar of Companies, ……., …….
I, Sri. ………………. (DIN: ………….),
solemnly affirm and say as follows:
1. That,
I am the Director of M/s. …………… Private Limited, since its incorporation.
2. I
have read the petition now shown to me and state that the statements made in
paragraph 1 to 11 thereof are correct and true to my knowledge.
3.
Facts
of the order against which appeal or review is filed: The Registrar of Companies, i.e. the Opp. Party
herein, struck off the petitioner company’s name of the Register maintained by
him, due to defaults in statutory compliances, namely, failure to file
Financial Statements & Annual Return for the period ………., ………., ………. & ………..
Consequently, the Registrar of Companies has initiated proceedings under
Section 248 of the Companies Act, 2013, for the purpose of striking off the
name of the company from the Register maintained by the Registrar of Companies,
……….
4. The facts of the case are given below:
i.
The Petitioner Company has filed the present
petition under Section 252
ii.
of the
Companies Act, 2013, seeking restoration of the name of the company on the
Register of Companies maintained by the Registrar of Companies, ………., ……….
iii.
That M/s ……………… Private Limited, was incorporated under the
Companies Act, 1956/2013 on ……th ……., 20…… vide CIN: ………….., as a
Private Company Limited by Shares with the Registrar of Companies, ………., ………. having
its Registered office situated at: ………………, City - ……………, State : ……….. and the authorised share capital of the Company is Rs. ……………./- (Rupees ……… only) divided into …………… number of equity
shares of Rs. ……/- (Rupees …. each) and the Issued, Subscribed & Paid Up
Capital of the Company is Rs. ……………/- (Rupees ……………. Only) divided into ………….
number of equity shares of Rs. …. /- (Rupees …. each). Copy of the Memorandum
and Articles of Association of the Company and The Certificate Of Incorporation
is annexed herewith and marked as Annexure-1.
iv.
At present the Company is managed by …….. directors
namely: Mr. ………………. (DIN: ………….) and Mrs. ………. (DIN: ……….).
v.
The Registrar of Companies, …………. i.e. the Opp.
Party herein, struck off the petitioner company’s name of the Register due to
defaults in statutory compliances, namely, failure to failure to file Financial
Statements & Annual Return for the period …………., …………., …………. & …………..
Consequently, the Registrar of Companies initiated proceedings under Section 248
of the Companies Act, 2013, for the purpose of striking off the name of the
company of the Register maintained by the Registrar of Companies.
vi.
The respondent had initiated proceedings under
Section 248 of the Companies Act, 2013, for the purpose of striking off the
name of the company from the Register maintained by the respondent.
vii.
That it is submitted that the Opp. Party has not
followed the procedure prescribed under Section 248 (1) of the Companies Act,
2013, notices as required under Section 248 (1) were not sent and has now
proceeded to issue notice under Section 248(5) publishing the name of the
petitioner company in the Official Gazette on ……th of …………., 2017. Copy
of the Notification date …..th, ………….,
2017 issued by the Opp. Party under Section 248(5) of the Companies Act is
annexed hereto and marked as Annexure-2.
viii.
The petitioner states that the petitioner company
has been active since incorporation and has also been maintaining all the
requisite documentation, as per the provisions of the Companies Act, 2013.
ix.
That it is submitted that the petitioner company
did not receive any show cause notice, nor was it afforded any opportunity of
being heard before the aforesaid action was taken by the Opp. Party.
x.
That it is submitted that the present petition is
within the limitation period stipulated by Section 252(3) of the Companies Act,
2013, i.e. 20 years.
xi.
The petitioner avers that the accounts of the
petitioner company were prepared and audited and that the company had engaged
the services of a Company Secretary
to perform the task of filing the returns with the office of the Registrar of
Companies and did not reveal this fact to the Directors of the petitioner
company. It is further submitted that it was only in ……, 2017, when the balance
sheet as at …………. and the Auditor’s Report in respect thereof was ready to be
filed with the Opposite Party that the fact of non-filing of the returns and
other documents with the Opposite Party, as well as the fact that the
petitioner company’s name had been struck off the Register maintained by the
Opposite Party, was known to the petitioner company.
xii.
That the object of Section 252(3) of the Companies
Act is to give a chance to the company, its members and creditors to revive the
company which has been struck off by the Registrar of Companies, within a
period of 20 years, and to give them an opportunity of carrying on the business
only after the Hon’ble Tribunal is satisfied that such restoration is necessary
in the interests of justice.
xiii.
That for the ends of justice, the present petition
may be allowed, since the Company is carrying on its Business and operation.
xiv.
That the Petitioner submits that in the event of
revival of the Company and restoration of the name of the Company in the
Register maintained by the Opposite Party, the Petitioner Company shall file
all outstanding statutory documents i.e. the financial statement &annual
returns for the period …………. to …………. along with the filing fees and the
additional fee, as applicable on the date of actual filing and the certified
copy of the Tribunal for the restoration of the name of the company to the
Register maintained by the Opposite Party etc.
xv.
That, unless the present application is allowed and the name of the company is not restored on the Register
of Companies maintained by the Registrar of Companies, the Petitioner as well
as its shareholders shall suffer irreparable loss and hardship and will be
highly prejudiced.
xvi.
That the present petition is made bona fide and in
the interest of justice.
5. Jurisdiction of the Tribunal: The
petitioner declares
that the matter of application/petition/ appeal falls within the jurisdiction
of the Tribunal.
6.
Limitation: The applicant/
petitioner/ appellant further declare that the application/petition/
appeal is within the limitation as prescribed in the provision of section 252
(3) read with section 433 of the Act.
7.
Matter not pending with any other Tribunal
etc: The petitioner further
declares that the matter regarding with this petition has
been made and is not pending before any Tribunal of law or any other authority
or any other Tribunal.
8. Particulars in respect of the
fee paid: An Amount of fees of Rs. ……. /- in the form of Demand
Draft drawn ……………, …………… Branch, …………., having the Demand draft Number, …….
dated …., …., 2017, the Demand Draft is Enclosed in Annexure- 3.
9. Details of Index: An index containing the
details of the documents to be relied upon is enclosed.
10.
List of enclosures:
Sr. No.
|
Particulars
|
Annexure
|
1
|
Copy of
Memorandum and Articles of Association
|
Annexure-1
|
2
|
Copy of
Notification dated ……
|
Annexure-2
|
3
|
Evidence
regarding payment of Fee
|
Annexure-3
|
4
|
Affidavit
Verifying the Petition
|
Annexure-4
|
5
|
Copy of Board
Resolution & Vakalatnama
|
Annexure-5
|
11. Relief(s) sought: It is therefore prayed
that directions may please be given, in the facts and circumstances stated
above, it is humbly prayed that this Hon’ble Tribunal may graciously be pleased
to issue notice to the Opp. Party and after hearing the parties allow the
Company Petition directing the Registrar of Companies, ………….., …………., Opp.
Party to restore the name of the Petitioner Company on the Register of
Companies maintained by the Registrar of Companies as if its name had not been
struck off from the rolls of the Register.
And pass such other order/orders
direction/directions as may deem just and proper in terms of Section 252(3)
of the Companies
Act, 2013.
And allow the Company Petition;
And
for this act of kindness the Petitioner shall as in duty bound ever pray.
Dated
this ………. day of ………., 2017.
_____________________________
(Signature of the petitioner)
Solemnly affirmed
before me at on this... day of ………., 2017.
_____________________________
(Signature)
AFFIDAVIT VERIFYING PETITION
BEFORE THE NATIONAL COMPANY LAW TRIBUNAL
………………… BENCH
Company Application No
............................ of 20 ...
'in Company Petition No
............................ of 20 ...
In the matter of: An application under- Section
252 of the Companies Act, 2013.
And
In the matter of: An application seeking restoration of the name of the company on
the Register of Companies maintained by the Registrar of Companies, ……..
And
In
the matter of: M/s.
………………. Private Limited
A
company incorporated under the Companies Act, ………. and having its registered
office situated at: ……………………………...,
City - ………., State: …………….
Represented
through its Director Sri. ____________ (DIN: _______________)
…………Petitioner
Versus
Registrar
of Companies, ………
At-…………………, City - ………., State: …….
............Opp.
Party
AFFIDAVIT VERIGYING PETITION
I, Sri.
………………., S/o- ………………., aged …. years, by religion Hindu, by occupation Business,
residing at: ……………….…, City :………., State : ………….. do hereby solemnly affirm and say as follows:
1.
I am
a Director of M/s. …………………Private
Limited, being the petitioner (Herein after referred as the Petitioner Company)
and am well acquainted with the facts and
circumstances of the above matter and am able to depose to the same.
2.
The statements made in paragraphs 1, to
11 of the petition herein now shown to me are true to my knowledge and are
based on information derived from the records of the petitioner company, which
I believe to be true; and the prayers thereof are my humble submissions before
this Hon’ble Tribunal.
3.
The statements contained in the
aforesaid paragraphs are true to my knowledge.
Solemnly
affirmed by
Sri. …………………
at
……………………. This ….. day of ….., 2017
VERIFICATION :-
I verify that the
contents of this affidavit are true to the best of my knowledge and belief.
Place:
…..
Date
:
Signature
: ______________________
(Deponent)
BEFORE THE NATIONAL COMPANY LAW TRIBUNAL
………………… BENCH
Company Application No .............................
of 20 ….
'in Company Petition No
............................. of 20 ….
In
the matter of: An application
under- Section 252 of the Companies Act, 2013.
And
In
the matter of: An
application seeking
restoration of the name of the company on the Register of Companies maintained
by the Registrar of Companies, ……….
And
In the matter of: M/s. ……………….
Private Limited, a company incorporated under the
Companies Act, 1956/2013 and having its registered at: ……………………………..., City
- ………., State: …………….
Represented
through its Director Sri. …………. (DIN: ………………..)
…………Petitioner
Versus
Registrar
of Companies, …………
At-…………………, City - ………., State: …….
............Opp.
Party
AFFIDAVIT VERIFYING PETITION of Sri. ………….. affirmed this ……. day of …………., 2017.
CS. ……………………
Company Secretary
MEMORANDUM
OF APPEARANCE
To
The
Registrar,
National
Company Law Tribunal,
………..
Bench,
In
the matter of …………………………….. Private Limited.
(C.P. NO. ………of 2016)
Sir,
Please take notice that I, ______________,
Company Secretary in practice, proprietor of ______________, duly authorised to
enter appearance, and do hereby enter appearance, on behalf …………………. Private
Limited, the petitioner 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,
Dated ………. day
of 2017 For ______________
Enclosure: as
aforesaid
____________________
M. No: ________, COP: ______
Address: _________
Mob. No: +91-___________
====================================================================
CERTIFIED
TRUE COPY OF THE RESOLUTION PASSED BY THE BOARD OF DIRECTORS OF THE COMPANY AT
THE MEETING HELD ON ____TH _____, 2017 AT ITS REGISTERED OFFICE AT 11.00
A.M.
==============================================================
“RESOLVED
THAT, Shri.
_____________, Director of the company be and are hereby authorised to
appear before the National Company Law Tribunal, ______ Bench, City - ……, and/or any other
authority and to sign and file petition, application, affidavits and other
relevant papers and documents and to do all such acts, deeds, things and
matters connected therewith and also to engage, appoint any professional,
Advocate and /or solicitor, any competent person to represent the company
before the National Company Law Tribunal, ……….. Bench, City - ………, and/or any
other authority for the revival of the Company”.
“RESOLVED
FURTHER, that Shri …………….,
ACS/FCS, Company Secretaries in whole time practice, ……………. be and are hereby
authorised jointly and severally to sign, verify and represent the company
before the National Company Law Tribunal, ………. Bench, City - ………, Concern
Registrar of Company or any other authority and/or in the matter and to receive
the necessary letters, notices, order/orders etc on behalf of the company and
to act in the all-purpose in this matter Including certification of papers on
behalf of the Company.”
Sign: Sign:
Name: Shri. …………….. Name:
Shri. ……………
Designation: Director Designation:
Director
DIN:………….. DIN:
………………..
VAKALATNAMA NCLT
BEFORE THE NATIONAL COMPANY LAW TRIBUNAL
………………… BENCH
Company Application No
............................. of 20 ….
'in Company Petition No
............................. of 20 ….
In the matter of:
The Companies Act, 2013;
And
In the matter of Sections 230
and 232 of the Companies Act, 2013;
And
In the Matter of: ……………
Private Limited, an existing Company having its Registered Office situated at ……………………………..., City - ………., State: …………….
And
..... Applicants.
We, ………………….. Private Limited, the above named Applicants
do hereby nominate and appoint, M/s……………….., Company Secretary, for us and on,
our behalf to act in the above matter and to do perform all acts matters and
things touching or concerning the same, and also do hereby undertake to pay all
costs and charges which they may incur in the premises.
Dated this ….., day of………, 2017.
We accept,
……………………………………………….
(…………………………….)
__________________
For…….
Advocates -on-Record for the Applicants
BEFORE THE NATIONAL COMPANY LAW TRIBUNAL
………………… BENCH
Company Application No
............................. of 20 ….
'in Company Petition No
............................. of 20 ….
In the matter of:
The Companies Act, 2013;
And
In the matter of Sections 230
and 232 of the Companies Act, 2013;
And
In the Matter of: ……………
Private Limited, an existing Company having its Registered Office situated at ……………………………..., City - ………., State: …………….
..... Applicants.
VAKALATNAMA
To,
The
Deputy Director
National
Company Law Tribunal, ……………. Bench
Dear Sir,
Please enter an appearance in our name on behalf of the
Applicants above named.
Dated this …….., day of ….., 2017.
Yours faithfully,
(…………………….)
For,
…………………..
Advocates-on-Record
for the Applicants
Above
named
…………………………………….
(……………………..)
For, ………………………………
Advocate
Thanks & Regards,
CS Meetesh Shiroya
