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Appeal to NCLT

Appeal to NCLT – Section 252 of Companies Act, 2013

Appeal to NCLT: Section 252 of Companies Act 2013

Section 252 of Companies Act, 2013 states that an individual aggrieved by an order given by the Registrar, stating a company as dissolved under Section 248, can file an appeal to the NCLT in less than three years from the date of the Registrar order. Moreover, if the Tribunal is not satisfied with the removal of the name of the company from the register of companies, it shall order the restoration of the name of the company on a condition by which the Tribunal has to provide a reasonable opportunity to make representation to the Registrar, the company and the respective individuals.

Also, read about National Company Law Tribunal

Restoration of the Name of the Company

  • An individual can file an application before the Tribunal for restoring the name of the company within a span of three years from the date of passing of the order dissolving the company under Section 248, if the Registrar is satisfied with the striking of the name of the company from the register of companies inadvertently or due to incorrect information that has been provided by the company or directors.
  • A photocopy of the order that is passed by the Tribunal has to be filed by the company to the Registrar in less than thirty days from the date of order and on receipt of the order, upon which the Registrar restores the name of the company in the register of companies. Once it is registered, a new incorporation certificate is issued.
  • If a company/member/creditor/workman is aggrieved by the company for having struck off its name from the register of companies, the Tribunal on an application made by the company, creditor, member or workman before the expiry of twenty years from the publication in the Official Gazette of notice made under Sub-section (5) of Section 248 states that the company has been carrying on a business or operation when its name has been struck off. By doing this, the name of the company would be restored in the register of companies, and the Tribunal provides other directions and provisions for the company.

Petition and Appeals

  • The petition or appeal or application that has to be filed before NCLT must be made in English. If it is in any other language, it shall be accompanied by a copy in English.
  • It shall be made on a legal-size paper, written fairly in legible form.
  • It must be printed in double spacing on one side of standard petition paper.
  • An appeal or petition has to be divided into paragraphs and must be numbered consecutively. Every paragraph has to state separate fact or allegation.
  • All fresh parties that are brought in have to be numbered in which they are brought in.
  • Each proceeding states immediately after the cause title the provision of law under which it is preferred.
  • Three sets of appeal or petition under Section 252 have to be filed before NCLT. In addition to this, one set has to be filed with the RoC; meaning five sets have to be prepared, from which three have to be filed with NCLT, one for RoC and one for the record. These rules are applicable under Rule 23 of the NCLT Rules, 2016.
  • All documents enclosed with an appeal or petition must be self-certified.
  • The name and signature of the representative must be included at the foot of every petition or appeal or pleading.
  • Once the petition or application is submitted before NCLT, the court notifies the date and place of hearing to the parties in the NCLT website.
  • The registry sends a certified copy of the final order passed to the parties without any charges. However, the order published over the NCLT portal and the certified copies can be procured by remitting the scheduled fee.
  • An appeal or application under Section 252 would be filed with a statutory fee of Rs. 1000.

Required Documents

Below given are the required documents that have to be enclosed with the appeal/petition.

  • Index of the appeal or petition
  • Notice of admission
  • Brief synopsis
  • Important dates and events
  • Petition or application mentioning the grounds
  • Every petition has to be verified by an affidavit in Form No. NCLT 6, attested on a stamp paper of Rs. 10
  • The authorized representative who could be the Company Secretary, Chartered Accountant or Advocate shall make an appearance through the filing of Vakalatnama or Memorandum of Appearance in Form No. NCLT 12 that represents the respective parties to the proceedings. It has to be notarized on a stamp paper of Rs. 20
  • A certified copy of Extract of Resolution of the Authorized Signatory/Authorized Representative
  • Power of Attorney attested on a Stamp Paper of Rs. 50
  • Master data of the company that has been obtained from the MCA portal
  • Audited financials of the company filing the application/petition for defaulted period
  • Certificate of Incorporation, Memorandum and Articles of Association of the company
  • Notices of RoC
  • Demand Draft of the statutory fee
  • ITR, VAT, GST Return, bank statement or other documents stating the working of the company at the time of striking off

Procedure for Restoration of the Name of the Company

According to Section 252(3) of the companies act, the petition for the restoration of name of struck off the company has to be filed with the National Company Law Tribunal by following the given procedure:

Drafting of Petition

Step 1: The petition must be drafted as per the National Company Law Tribunal Rules, 2016. Once the petition is drafted, the same has to be filed in form INC-9 with the required documents as mentioned above.

Submission of Petition with ROC

Step 2: A copy of the petition in form INC-9 should be submitted to Registrar of Companies (ROC) in 14 days from the date of hearing fixed by the Tribunal.

Hearing by Tribunal

Step 3: The National Company Law Tribunal will hear the petition on the date specified by the petitioner and the respondent. Upon hearing both the parties are satisfied, Tribunal would pass an order for restoration of name of struck off the company in the Register of Companies (ROC) records.

Directions by Tribunal

Step 4: Then the Tribunal would make an order for restoring the name of a struck off company in the Register of Companies (ROC), the order would require that:

  • The applicant is requested to deliver a certified copy of the order passed to the Register of Companies (ROC) within 30 days.
  • On delivery of such order to the Register of Companies (ROC), the Official Gazette in his official name would seal and publish the order.
  • The applicant should remit an amount accompanied by the appeal or application unless otherwise directed by the Tribunal.
  • The company should file for pending financial statements and annual returns with the Registrar in accordance with the provisions of the Companies Act and also the rules made within such time to be followed as directed by the Tribunal.

Filing of order with ROC

Step 5: The company should file the copy of the order in the form INC-28 to the Register of Companies (ROC) in 30 days from the date of the order.

Publication of order in Gazette

Step 6: On receipt of the copy of the order, the Register of Companies (ROC) will seal and publish the same order in the Official Gazette.

Effect on Restoration

  • After restoration, all the returns of the company should be filed along with the applicable additional fee.
  • Also, the Tribunal may pass an order by stating that the company and any other person belonging to the person will remain in the same position as the name of the company had not been struck off from the ROC (Register of Companies).

Penalty for the revival of struck off Companies

In case of companies have been struck off due to defaulting in the filing of annual return and financial statements in such case the penalty will be imposed in the form of late fee.

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