ORDER
N.V. Ramana, J.
1. By this Company Petition, filed under Section 560(6) of the Companies Act, 1956 read with Rule 9 of the Companies (Court) Rules, 1959, the petitioner, namely M/s. Vijayawada Chamber of Commerce and Industry, seeks a direction to the respondent, namely Registrar of Non-Trading Companies, to restore the name of the petitioner to the Register of Non-Trading Companies.
2. The petitioner was incorporated under the Companies Act, 1956 (for short 'the Act') read with Section 3 of the Non-Trading Companies Act, 1962 (for short the 'Non-Trading Act') under Registration No. 19/64, with its registered office situate on Chamber Road, Gandhi Nagar, Vijayawada.
3. The main objects for which the petitioner was incorporated was to promote and protect trade, commerce and industries located in the State of Andhra Pradesh. The petitioner is a non-trading company. The liability of its members is limited. The petitioner has on its register rolls about 1200 members drawn from various industries. The membership is divided into panels, namely individual members, firm members, affiliated members, life members and industrial members. The petitioner used to look after the interest of its members in trade, commerce and industry, guide and assist them in the promotion of the trade, commerce and industry in the State of Andhra Pradesh. The petitioner is prompt and regular in complying with the requirements of the provisions of Andhra Pradesh Non-Trading Companies Act, 1962 read with Section 3 of the Non-Trading Companies Act, 1962.
4. It is submitted that the petitioner has submitted its annual returns, statement of accounts to the Registrar of Non-Trading Companies till March, 2000 and there was delay in filing the returns for the year 2001. When the petitioner filed its returns and statement of accounts for the year 2001 and 2002, it is stated that the petitioner was informed that the name of the petitioner has been struck off from the register of the respondent and that a final notice had also been published in A.P. Gazette vide Notification No. 37, page 1394, dated 14-9-2000.
5. Having come to know that its name has been struck off from the register of the respondent, it is the case of the petitioner that it requested the respondent to revive its name in his register for the reason that the petitioner was in existence for the last 37 years and never defaulted in filing the annual returns. However, it is stated that the respondent instead of restoring its name in his register, by his orders dated 27-2-2003 informed that as per Rules 5 and 6 read with Sections 2(11), 10(2)(b) of the Companies Act, 1956, the petitioner can prefer an appeal to the District Court for a direction in this regard. Aggrieved by the said communication of the respondent, the petitioner filed this Company Petition praying for the direction stated in the preliminary paragraph.
6. When this Company Petition came up on 29-8-2003, this Court issued notice to the respondent before admission. The petitioner having taken out notice to the respondent, filed proof of service of notice on the respondent on 15-9-2003.
7. In response to the notice ordered by this Court, the respondent filed an affidavit. It is stated that every company which is incorporated under the provisions of the Act read with Section 3 of the Non-Trading Act, is required to submit annual returns, and as the petitioner has not submitted annual returns from the year 1990 onwards, the name of the petitioner was struck off from the register of the respondent following due procedure as contemplated under Section 560(6) of the Act, and even the final notice was published in A.P. Gazette vide Notification No. 37, page 1394 on 14-9-2000, and hence, no fault could be found with the action of the respondent.
8. Denying the allegations of the respondent, the petitioner filed a reply stating that the petitioner was prompt and regular in submitting annual returns and statement of accounts from 1990 onwards till 1997-98, and though it was regular in submitting the annual returns, it could not file the returns for the period from 1998-99 in time, and it filed the annual returns for the period 1998-99 to 2000-01 on 7-2-2001. It is further submitted that the petitioner has never stopped its activities and that it is conducting meetings of the management committee regularly and so also the annual general meetings, and in support of these statements, the petitioner filed the minutes of the annual general meetings, including the latest minutes along with its reply.
9. Heard the learned Counsel for the petitioner and the learned Counsel for the respondent.
10. The learned Counsel for the petitioner submits that the petitioner is a non-trading company registered under the A.P. Non-Trading Companies Act, 1962 and the Companies Act, 1956. Its activities are confined to the State of Andhra Pradesh. The petitioner was prompt and regular in submitting the annual returns, except for the last three years from 1998-2001, and even for the said year, the petitioner filed the annual returns on 7-2-2001. In support of this submission, the learned Counsel produced the latest minutes of its management committee and also the annual general meetings conducted by the petitioner. The learned Counsel for the petitioner submits that inasmuch as the petitioner has not stopped its business and is conducting its operations and is assisting trade and commerce and giving guidance to its members who are mostly engaged in trade and commerce in the State of Andhra Pradesh, the name of the petitioner should be ordered to be restored on the rolls of the register of the respondent having regard to the provisions of Section 560(6) of the Act which, states that if a company or any member or creditor aggrieved by striking off the name from the register of the respondent, the Court on an application made by any of them, before the expiry of twenty years from the date of publication in the Official Gazettee of the final notice, if it is satisfied that as on the date of striking the name, the company was carrying on business or was in operation.
11. The learned Government Pleader for Revenue submitted that as the petitioner did not file the annual returns, the name of the petitioner was struck off from the rolls of the register of the respondent and even final notice was also issued, and as such action was taken by the respondent following the procedure and in accordance with law, no exception can be taken to the action of the respondent in striking off the name of the petitioner from the rolls of the register of the respondent.
12. In the backdrop of the above pleadings and contentions, the only question that arises for consideration is whether the name of the petitioner, which was struck off from the rolls of the register of the respondent, can be ordered to be restored.
13. Having regard to the fact that the petitioner was incorporated under the provisions of the Non-Trading Companies Act, 1962 and the Companies Act, 1956, the relevant provisions thereof, may be analyzed for dealing with the issue on hand, with dexterity.
14. Section 2 of the A.P. Non-Trading Companies Act, 1962 defines 'company' as follows:
'Company' means a company formed and registered under this Act, or an existing company formed and registered under any of the previous laws specified in Sub-clause (ii) of Clause (1) of Section 3 of the Companies Act, 1956 (Central Act 1 of 1956), and which is a non-trading corporation with objects confined to the State of Andhra Pradesh falling within the scope of entry 32 in List II of the Seventh Schedule to the Constitution of India.
15. Section 3 of the Non-Trading Act, reads as follows:
Application of Central Act 1 of 1956 to companies to which this Act applies :--The provisions of the Companies Act, 1956 (Central Act I of 1956), shall, so far as may be, apply to the incorporation, regulation and winding up of companies to which this Act applies:
Provided that:
(i) the powers conferred on the Central Government by those provisions shall be exercisable and may be exercised by the State Government;
(ii) the State Government shall be competent by notification in the Andhra Pradesh Gazette, to delegate all or any of such powers to any subordinate officer or authority specified in the said notification;
(iii) the State Government shall have power by like notification to relax, omit, add to or vary any provisions of the aforesaid Central Act, in relation to companies to which this Act applies;
(iv) the powers, duties and functions of the Registrar under the said provisions shall be exercised, discharged and performed by such person as may be appointed by the State Government by name or by virtue of office to be the Registrar in relation to companies to which this Act applies.
16. A reading of the aforementioned provisions of the Non-Trading Act, would disclose that even though the companies are incorporated under the said Act, the provisions of the Companies Act, insofar as applicable, apply to the said companies with respect to incorporation, regulation and winding up.
17. Section 3 of the Companies Act, 1956 defines 'company' to mean a company formed under the Act, and include those registered under the earlier Companies Acts also. Section 2(11) of the Act, defines 'Court' to mean with respect to any matter relating to the company (other than any offence against this Act) the Court having jurisdiction under this Act with respect to that matter relating to that company as provided in Section 10 of the Act. Section 10 of the Act deals with the jurisdiction of the Courts. As per Section 10(2)(b) of the Act, High Court has exclusive jurisdiction to deal with the companies with the paid up share capital of not less than one lakh rupees by Part VII (Sections 425 - 560) and other provisions of the Act relating to the winding up of companies.
18. Section 560(6) of the Act empowers the Registrar to strike the name of a defunct company off the register. The said Section reads:
560. Power of Registrar to strike defunct company off register :--(1) Where the Registrar has reasonable cause to believe that a company is not carrying on business or in operation, he shall send to the company by post a letter inquiring whether the company is carrying on business or in operation.
(2) If the Registrar does not within one month of sending the letter received any answer thereto, he shall, within fourteen days after the expiry of the month, send to the company by post a registered letter referring to the first letter, and stating that no answer thereto has been received and that, if any answer is not received to the second letter within one month from the date thereof, a notice will be published in the Official Gazette with a view to striking the name of the company of the register.
(3) If the Registrar either receives an answer from the company to the effect that is it not carrying on business or in operation, or does not within one month after sending the second letter receive any answer, he may publish in the Official Gazette, and send to the company by registered post, a notice that, at the expiration of three months from the date of that notice, the name of the company mentioned therein will, unless cause is shown to the contrary, be struck off the register and the company will be dissolved.
(4) If, in any case where a company is being wound up, the Registrar has reasonable cause to believe either that no liquidator is acting, or that the affairs of the company have been completely wound up, and any returns required to be made by the liquidator have not been made for a period of six consecutive months, the Registrar shall publish in the Official Gazette and send to the company or the liquidator, if any, a like notice as is provided in Sub-section (3).
(5) At the expiry of the time mentioned in the notice referred to in Sub-section (3) or (4), the Registrar may, unless cause to the contrary is previously shown by the company, strike its name off the register, and shall publish notice thereof in the Official Gazette, and on the publication in the Official Gazette of this notice, the company shall stand dissolved:
Provided that--
(a) the liability, if any, of every director, the managing agent, secretaries and treasuries, manager or other office who was exercising any power or management, and of every member of the company, shall continue and may be enforced as if the company had not been dissolved; and
(b) nothing in this sub-section shall affect the power of the Court to wind up a company the name of which has been struck off the register.
(6) If a company, or any member or creditor thereof, feels aggrieved by the company having been struck off the register, the Court, on an application made by the company, member or creditor before the expiry of twenty years from the publication in the Official Gazette of the notice aforesaid, may, if satisfied that the company was, at the time of the striking off, carrying on business or in operation or otherwise that it is just that the company be restored to the register, order the name of the company to be restored to the register and the Court, may by order, give such directions and make such provisions as seen just for placing the company and all other persons in the same position as nearly as may be as if the name of the company had not been struck off.
(7) upon a certified copy of the order under Sub-section (6) being delivered to the Registrar for registration, the company shall be deemed to have continued in existence as if its name had not been struck off.
(8) A letter to be sent under this section to a company may be addressed to the company at its registered office, or if no office has been registered, to the care of some director, the managing agent, secretaries and treasuries, manager or other officer of the company, or if there is no director, managing agent, secretaries and treasuries, manager or officer of the company whose name and address are known to the Registrar, may be sent to each of the persons who subscribed the memorandum, addressed to him at the address mentioned in the memorandum.
(9) A notice to be sent under this section to a liquidator may be addressed to the liquidator at his last known place of business.
19. From a reading of the above provisions, it would become clear that under Sub-section (1) of Section 560(6) of the Act, where the Registrar has cause to believe that a company is not carrying on business or in operation, he is empowered to send letter to the company enquiring whether it is carrying on business or in operation, and if the Registrar does not receive any reply from the company, under Sub-section (2) thereof, within fourteen days after the expiry of one month, issue reminder making reference to the first letter, and if in spite of receiving the said letter, if the company fails to reply within one month from the date thereof, he will publish a notice in the Official Gazette for striking the name of the company of the register. In the event the Registrar receives reply to the letter from the company stating that the company is not carrying on business or in operation or does not receive any reply within one month after sending the second letter, under Sub-section (3) thereof, he may publish the same in the Official Gazette and send a notice to the company that in the event he does not receive reply at the expiration of three months from the date of that notice, the name of the company will be struck off the register and the company dissolved unless cause is shown to the contrary. In case of a company which is being wound up and the Registrar has reasonable cause to believe either that no liquidator is acting or that the affairs of the company have completely been wound up and the returns required to be made by the liquidator have not been made for a period of six consecutive months, Sub-section (4) empowers the Registrar to publish a like notice as provided in Sub-section (3) and send the same to the company or the liquidator. Under Sub-section (5), at the expiry of the time mentioned in Sub-section (3) or (4), the Registrar may, unless cause to the contrary is previously shown by the company, strike its name off the register, an publish the notice in Official Gazette, and on such publication, the company shall stand dissolved and the liability, if any, of the persons mentioned in the proviso (a) shall continue and may be enforced as if the company had not been dissolved and proviso (b) provides that nothing in the sub-section shall affect the power of the Court to wind up a company, the name of which has been struck off the register. Sub-section (6) provides that if a company, or any member or creditor thereof, is aggrieved by the striking the name of the company off the register, on an application made by any of them to the Court before the expiry of twenty years from the date of publication of notice in the Official Gazette, the Court may on its satisfaction, order the name of the company to be restored to the register and make provisions for placing the company and all other persons in the same position as nearly as may be as if the company's name had not been struck off the register. The order made under Sub-section (6) on being delivered to the Registrar, Sub-section (7) provides that the company shall be deemed to have continued as if its name had not been struck off, and Sub-section (B) provides for sending of the letter of restoration of the name of the company to the register to the company at its registered office of if no office has been registered to the care of the persons mentioned therein or to the address known to the Registrar as found in the memorandum, and Sub-section (9) provides sending of notice to a liquidator.
20. In the instant case, in spite of issuing notices by the Registrar to the petitioner requiring the petitioner to inform whether it is carrying on business or in operation, the petitioner has not replied, and in those circumstances, the Registrar issued final notice striking off the name of the petitioner from the rolls of the register of the respondent, which was also published in the A.P. Gazette vide Notification No. 37, Page No. 139 on 14-9-2000. Sub-section (6) of Section 560 of the Act provides that the person aggrieved by the striking off the name of the company off the register has to before the expiry of twenty years, apply to this Court, and the Court on its satisfaction may restore the name of the company to the register. In the instant case, the Registrar published the notice in the A.P. Gazettee on 14-9-2000, while the petitioner filed the present Company Petition on 26-8-2003, which is much before the expiry of twenty years, and having regard to the fact that the present Company Petition has been filed before the expiry of twenty years, as is mentioned under Section 560(6) of the Act, the same can be entertained for the same is not barred by limitation, and before entertaining this Company Petition, it is imperative that this Court should satisfy itself as to whether the petitioner was, in fact, carrying on business and was in operation uninterruptedly since its incorporation.
21. Though the petitioner claimed that it has been carrying on business and was in operation since its incorporation and was submitting the annual returns and statement of accounts to the respondent promptly and regularly since 1990, it is its admitted case that it had not filed annual returns and statement of account for three years from 1998-99 to 2000-01. And inasmuch as the petitioner failed to submit the annual returns and statement of accounts, the respondent passed orders striking off the name of the petitioner from the rolls of the register of the respondent and also published the final notice in the A.P. Gazette vide Notification No. 37, Page No. 139, dated 14-9-2000. The petitioner to prove its case that it has been carrying on business and is in operation uninterruptedly since its incorporation, in the reply affidavit stated that it had filed the annual returns and statement of accounts for the years 1998-99 to 2000-01 belatedly on 7-2-2001 along with necessary fee, and also filed documents, namely copies of the minutes of the annual general body meeting and the minutes of the management committee meeting of the petitioner and the fortnightly newspaper, a perusal of which go to show that the petitioner was, in fact, carrying on business and was in operation on the date of striking off the name of the petitioner from the rolls of the register of the respondent, and is continuing to actively assist the promotion of trade, commerce and industry in the State of Andhra Pradesh, I am of the consideration opinion, that the company petition deserves to be allowed.
22. In the above view of the matter, the Company Petition is allowed. The respondent is directed to restore the name of the petitioner in his register treating as if its name had not been struck off from his rolls of the register. No costs.