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A company has failed to commence its business within one year of its incorporation.
The subscribers to the memorandum have not paid the subscription which they had undertaken to pay within a period of one hundred and eighty days from the date of incorporation;
A company is not carrying on any business or operation for a period of two immediately preceding financial years;
By extinguishing all its liabilities
An application / appeal shall be filed in Form No. "NCLT – 9" with NCLT Bench having jurisdiction based on the Registered Office Address of the Company with Detailed reasons for such restoration along with the evidence and proofs; Affidavit verifying the petition in prescribed form duly notarized; Demand Draft for payment of fee of Rs. 1,000/- (Rupees One Thousand Only); Copy of MOA & AOA, Copy of Notice as issued by the concerned ROC for striking off of the Company; Copy of Board Resolution for restoration of Name, Authorization in favour of any director and appointment of Professional to appear on behalf of the Company, Memorandum of appearance with copy of the Board Resolution or the Vakalatnama, as the case may be, Latest audited financials; Proof of service of application on ROC; Any other documents in support of the case.
On getting the order for Restoration of the Name, Company shall file the copy of order with the concerned Registrar of Companies with in a period of 30 days from the date of the order in Form INC – 28.
As per the directions of the NCLT the company shall file all pending financial statements and annual returns with the Registrar and comply with the requirements of the Companies Act, 2013.
Applicant has to serve an advance copy of the application on the Registrar of Companies and on such other persons as the Tribunal may direct, not less than 14 days before the date fixed for hearing of the application.
Where the Tribunal makes an order restoring the name of a company in the register of companies, the order shall direct that-
The Registrar of Companies do, in his official name and seal, publish the order in the Official Gazette after restoration of the name of the Company in his records.
Before jumping to the process of revival, let us look who all can make an appeal in NCLT to restore the company as per provisions of sections 252(3). It could be :
Company
Any member/ Creditor
Workmen
It is important to note that in a recent Order of NCLT i.e. M. G. Power System Private Limited V/s Registrar of Companies, NCT of Delhi & Haryana Dated 18th May, 2017 C.P. No. 47/2015 – Before NCLT, New Delhi
The Hon'ble NCLT has allowed the petition; even ROC has contended that the petitioner company has not filed its statutory returns and other documents since incorporation. Thus, it’s giving rise to the reasonable belief that the company was not operational. The Hon’ble NCLT states that it would be just and proper to order restoration of the name of Company in the register of the ROC. The petitioner company was directed to file all pending returns in 30 days of restoration and to deposit Rs. 25,000/- to Prime Minister Relief Fund.
The Companies Act, 2013 provides exhaustive measures for the revival of companies and the Hon'ble NCLT is vested with powers to take all necessary measures for the revival of companies. Petitioner has to ensure that the grounds, facts and documents are adequate and proper before filing any such application or appeal for revival of Company.
