Vayu Sakthi Suppliers Pvt Ltd Vs Roc, Chennai
Facts:
1. Company was incorporated on 12.03.1996, registered under the Companies Act, 1956, with the object of generation, distribution and marketing of Power/electricity. Company has not filed its financial statements and annual returns for the period from the financial year 2015-16 till the year of strike off with the Respondent/RoC and hence the Respondent had initiated proceedings under the provisions of Section 248 of the Companies Act, 2013 and consequently struck off the name of the Company from the Register maintained by them.
2. Petition filed by one Mr. T Sharat Babu in the capacity as a Director of the Company namely, M/s. Vayu Shakthi Suppliers Pvt. Ltd. (hereinafter “Petitioner Company”) under Section 252 of the Companies Act, 2013 and Rules 11 and 87A of the NCLT Rules, 2016, aggrieved against the order of strike off carried out by the Respondent.
Issue: Whether the application can be allowed ?
Arguments:
Petitioner:
1. Counsel for the petitioner has submitted that the Petition has been filed challenging the order of the first Respondent herein, as an investigation in relation to one company namely, M/s. Subhiksha Trading Services Pvt. Ltd., a company now under liquidation, was ordered by the second Respondent herein. It was averred that by an order dated 17.12.2012, forty two (42) further companies were made part of the investigation wherein, the Petitioner herein is a part. It is further averred that, on 05.05.2017 and on 23.11.2017, the 1st Respondent herein had ordered a supplementary investigation under section 212(1) of the Companies Act, 2013 on the above mentioned company namely, M/s. Subhiksha Trading Services Pvt. Ltd and the 42 companies which includes the Petitioner herein.
2. Counsel submitted that Respondent cannot exercise the power under section 248 of the Companies Act, 2013 as it has not complied with the pre requisites of Sub sections 248 (1) to 248 (6). The Petitioner further states in the Petition that, the 1st Respondent has not complied with the provisions of the Companies (Removal of Names of Companies from the Register of Companies) Rules, 2016.
Respondent:
1. Counsel submitted that Director does not have a locus standi to file the petition since the Board of Directors cease to exist pursuant to strike off of the Company. Counsel submitted that Company has failed to follow the statutory compliance as provided under section 92(4) and procedural compliance as provided under Section 455 of the Companies Act, 2013, which action of the Petitioner Company gave a reason for the Respondent to believe that the Petitioner Company was inoperative.
2. Counsel submitted that company has not made any representation within the time limit of 30 days as stipulated in Form No. STK – 1 Notice and hence the Respondent removed the name of the Petitioner Company from the Register of Companies as per Section 248 of the Companies Act, 2013.
Decision: NCLT allowed the application.
Rationale:
1. It held that when the vires of the notice issued by the Respondent / RoC under Section 248 of Companies Act, 2013 is under challenge, the locus standi of the Petitioner Company in filing the present Application in the name of the Company cannot be raised by the Respondent.
2. It held that Rule 3(1)(iv) of the Companies (Removal of Names of Companies from the Register of Companies) Rules, 2016 does not distinguish as to what is ‘Supplementary’ Investigation and ‘Detailed’ Investigation. The Rule 3(1)(iv) in its plain language has stated that when an Investigation or an Inspection in relation to a Company is pending then the Registrar of Companies shall not initiate action as contemplated under Section 248 of the Companies Act, 2013.
3. It held that when the Rule 3(1)(iv) of the Companies (Removal of Names of Companies from the Register of Companies) Rules, 2016 debars the Respondent to remove the name of Company in respect of which an Investigation or Inspection is pending, then the Respondent / RoC while initiating action under Section 248 of the Companies Act, 2013 is duty bound to ascertain as to whether any investigation or inspection is pending in relation to the Company which is proposed to be struck off.
Order:
