Draft Petition before NCLT to restore the Company under Section 252 of Companies Act 2013

Draft NCLT Petition to restore the Company struck off under section 248 by the ROC.

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. Evidence regarding filing of pending Balance Sheets and Annual Returns along with challans. Annexure-5  
6 Details of major transactions during previous years Annexure-6  
7. Undertakings Annexure-7  
8. Copy of Board Resolution & Vakalatnama Annexure-8  

 

………………… 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. ABC 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:

  1. Name of the petitioner: M/s. ………………. Private Limited
  1. Address of registered office of the applicant/ petitioner/ appellant:……………………, City – ………., State: …………….

iii. Address of service of all notices: ………………………………,   City – ………., State: …………….

  1. Telephone/ Fax Number and e-mail address, if any: …………

Particulars of the respondent:

  1. Name of the respondent(s): Registrar of Companies, ………..
  1. 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.
  1. 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.
  1. 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, ……….
  1. The facts of the case are given below:
  1. The Petitioner Company has filed the present petition under Section 252
  2. 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.

  1. At present the Company is managed by …….. directors namely: Mr. ………………. (DIN: ………….) and Mrs. ………. (DIN: ……….).
  2. 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.
  3. 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.

  1. 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.
  2. 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.
  3. 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.

  1. 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.

  1. Jurisdiction of the Tribunal: The petitioner declares that the matter of application/petition/ appeal falls within the jurisdiction of the Tribunal.
  1. 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.
  1. 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.
  1. 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.
  1. Details of Index: An index containing the details of the documents to be relied upon is enclosed.
  1. That after coming into the notice of the striking off of the Company, the Company has filed all the pending balance sheets, profit & loss accounts and Annual returns for previous — years, which were pending on the part of the Company. In case this Hon’ble tribunal requires any other information, account or records from the Company, the Company and its management shall file the same at the earliest. the Copies of all the balance sheets, Profit & Loss accounts along with Annual Returns filed by the Company have been annexed as Annexure -5
  1. that the Company has not entered into any such material transaction of sale/purchase which can be specifically produced before the Hon’ble NCLT. the Details of the transactions have already been contemplated in the balance Sheets and the Profit & Loss accounts of the company. Despite this, if the Hon’ble Tribunal requires any details pertaining to any transactions of the Company. the Company shall file the same with all details before the Hon’ble tribunal. [In other case, if the Comapny has entered into any major transaction of sale and purchase, whatsoever. same should be reproduced in Annexure-6]
  2. 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)

 

 

[ABOVE CONTENT HAS BEEN PUBLISHES TO GIVE AN IDEA ONLY OF HOW NCLT PETITION FOR RESTORATION OF COMPANY SHALL BE PREPARED. HOWEVER, THE CONTENTS OF EACH PETITION DIFFERS CASE TO CASE. ABOVE DATA HAS BEEN COMPILED ON THE BASIS OF VARIOUS INFORMATION AVAILABLE ON ONLINE SOURCES.]

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