As per section 248(1) of the Companies Act, the Registrar holds the power to remove the name of the company from the register of companies by sending a legal notice in writing with the help of Form STK -1 of Companies Rules 2016 to the company and all its directors at the addresses that are available in the record. The Registrar must send this notice via speed post with acknowledgement due.
The notice must also include all the reasons on which the company name has been struck off from the register of companies and must seek representation against the proposed action from the company and its directors along with copies of pertinent documents, if any, within 30 days, starting from the date of notice
Companies That Are Not Allowed To Be Removed From The Register of Companies
The below-mentioned list includes the companies that shall not be struck off from the Register of Companies:
- Listed Firms
- Vanishing firms
- Firms that are already delisted due to non-compliance with the listing regulations or any statutory law or agreement.
- The companies where investigation or inspection is already ordered or carried out or actions against such orders are yet to be taken or have already been taken, but the prosecutions arising out of such investigation are pending in court.
- The companies who have received the notice under section 234 of the Companies Act,1956 (1 of 1956) or section 206 or section 207 of the Act from the Investigation Officer or Registrar, and the reply thereto is not furnished or reported under section 208 is not filled or follow up of instructions on the report under section 208 is still due or any prosecutions arising out of such inquiries are pending with the Court.
- Companies who have committed a listing offence, for which the prosecution is still pending within the court.
- Companies whose applications for compounding are still not furnished before any of the relevant authorities for compounding offences committed by either the company or any of its officers in default.
- Companies who have accepted public deposits, but have been reported for delay in repayment
- Companies that are registered under section 25 of the Companies Act, 1956 or section 8 of the Companies Act.
Entities Eligible To File Application To NCLT Against Registrar Order
The entities who have been afflicted by the order of the Registrar can file their restoration application to the National Company Law Tribunal (NCLT) within a time period of 3 years, starting from the date of the notice, as per Section 252(1) of the Act.
Application Filing Procedure To NCLT
An application under Section 252(1) in cohesion with Rule 87A of National Company Law Tribunal Rules 2016, can be filed to the NCLT with the help of Form-NCLT-9.
- Documents that must be Furnished along with Form NCLT-9
- Copy of MOA & AOA.
- Affidavit Verifying Petition in Form- NCLT-6
- List of Directors of Company
- Order of Registrar of Companies(Certified copy)
- Copy of Pending Balance sheets.
- Evidence for Payment of Fees made.
- Memorandum of Appearance
- Copy of Board Resolution
- Any other Document in support of the application.
Service of Notice
A copy of the restoration application must be furnished to the Registrar along with all other relevant persons as guided by the Tribunal, 14 days before the date fixed for hearing of the appeal or application.
The Opportunity of Being Heard
Before giving any order or declaration, the Tribunals give an opportunity to be heard to all the entities involved in the company name restoration dispute, including the Registrar, the company, and all the other relevant persons.
Order Passing
- Once the Tribunal has heard the appeal or the application or any adjourned hearing, the Tribunal is allowed to pass a relevant order, if required. If the Tribunal has passed the decision to restore the name of a company in the register of companies, the order implicitly directs that:
- The applicant must submit a certified copy of the order to the Registrar of Companies within a time period of thirty days.
- On receiving the copy of the authorized restoration order, the Registrar of Companies, in his official seal and name, must furnish the order in the Official Gazette.
- The applicant must pay any costs incurred to the Registrar of Companies in the restoration process against the appeal or application. The applicants must not pay if guided otherwise by the Tribunal.
- The applicant firm is also obliged to submit all the relevant annual returns and financial statements to the Registrar and must comply with the rules and regulations of the Companies Act 2013.
Filing of Order
The order passed by the Tribunal must be filed by the applicant (company) to the Registrar with the help of Form INC-28.
