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Revival of companies under the new companies act 2013

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Revival of companies under the new companies act 2013

Revival of companies under the new companies act 2013

VikramSRoC Compliance8 years ago34 Views

Procedure for Revival/ Restoration of Struck off Companies under section 248 of the Companies Act (the Act) 2013 through NCLT, 2017.

Greetings of the day

Before moving to the procedure for revival of companies one must note some basic requirements for such revival

Who Can File Application For Restoration Of Names?
1. Any person aggrieved by order under section 248,

Registrar of Company himself
by Company
by member
by creditor
by workmen

Time limit for filing appeal

any person aggrieved by the order of the Registrar under section 248 may within 2 years from the date of order file An appeal to National Company Law Tribunal (Tribunal) (In form NCLT-9) for the restoration of Name of Company in the Register of Companies.

Time limit for filing application

A company/member/creditor/workmen can also file application Feels aggrieved by company to Tribunal for restoration of name of the Company (In form NCLT-9) Within 20 years from the publication of the order in the official Gazette.

Grounds on which application can be filed

An application so made will be accepted, if the Tribunal is 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 is restored to the register of companies. If satisfied, the Tribunal may pass the order for restoration of the name of the company.

Appointment of authorized representative

Every party may appear before a Tribunal in person or through an authorized representative,duly authorized in writing in this behalf. The Authorized Representatives shall make an appearance through the filing of Memorandum of Appearance or a power of attorney in Form No. NCT. 12 representing the respective parties to the proceedings. In case of legal practioner/ advocate, he may make appearance by filing Vakalatnama. Authorized reprenstative means an Advocate or a Company Secretary in practice or a Chartered Accountant in practice or Cost Accountant in practice.

Legal Reasons for Revival/Restrotation –

even if company strike off by the registrar, directors turn out to be disqualifying for appointment and appropriate action against the director can be taken.
if a director disqualifies then his office as director in all the companies simultaneously vacant
if a director fails to comply with his duties then he is liable for penalty u/s 166(7) i.e. ‘fine which shall not be less than one lakh rupees but whichmay extend to five lakh rupees.

General Reasons for Revival/Restrotation

Companies are actually in operation and are earning good turnover.
Companies were not aware of the Companies Act provisions (relating to filing of account with ROC) applicable on them.
Due to non receiving of notice issued by the Registrar.
Due to lapse of respond 30 days time.
Due to non submission of reply of Show Cause notice and directly engaged in completing the pending filings.
Due to objection of Creditors/members of the Company.
Due to attraction of disqualification and to remove the disqualification.
Due to actions which could be taken against directors of the company.

General Procedure for revival/restoration of company.

Step-1: Draft an Appeal/Application in Form NCLT- 9.

Step-2: Appeal or Application shall be verified by an affidavit in form NCLT-6

Step-3: Every Party may appear before tribunal in person or through authorized representative, appearance through Memorandum of Appearance in Form NCLT-12

Step-4: Get all Documents arranged in proper manner and get all affidavits properly notarised from a public Notary. Appeal should be with a proper cover letter along with a declaration through Directors that all pending Annual Filing shall be completed within stipulated time as per the directions of the NCLT.
Step-5: Make a demand draft of Rs. 2,500/- (In Favour of Pay and Accounts Officer, Ministry of Corporate Affairs)

Step-6: Serve an advance copy of the appeal or application to the concerned RoC (Speed Post + Physical Submission through a covering letter as well) 14 days before date of hearing

Step-7: Submit the Original Appeal or application along with proof of service to the concerned RoC with NCLT along with demand draft and all the supporting documents/affidavits etc.
Step-8: Notice to be issued by the tribunal to the opposite party shall be in Form NCLT-5

Step-9: Get the matter listed in the concerned court and appear before tribunal in person or through authorized representative for which MOA has been filed for the matter listed in your appeal/application.
Step-10: Issue of Directions by Tribunal to parties

Step-11: If the tribunal got satisfied with you he may pass the Order for revival/restoration.

Step-12: Certified Copy of order so passed by the Tribunal must be filed in form INC-28 with the Registrar within 30 days from the date of the order.

Step-13: On receipt of the order, the Registrar is required to cause the name of the company to be restored to the register of companies and issue a fresh certificate of incorporation. Concerned RoC shall publish the order in Official Gazzette.

Step-14: The Company to comply with pending filing of financial statements and annual returns with Registrar complying with Companies Act, 2013 and rules thereof.

Step-15: Any Restoration costs to be paid to the registrar by appellant or applicant unless the Tribunal directs otherwise.

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Hope this is article will help you or your clients and clarified the conceptual and procedural Part.

DISCLAIMER: The entire contents have been developed on the basis of relevant information and are purely the views of the authors. Though the authors have made utmost efforts to provide authentic information however, the authors expressly disclaim all or any liability to any person who has read this document, or otherwise, in respect of anything, and of consequences of anything done, or omitted to be done by any such person in reliance upon the contents of this document. Reader should seek appropriate counsel for their own situation. I shall not be held liable for any of the consequences directly or indirectly.

Any other suggestions /opinions are welcomed.

Author : CS Megha Sharan