<\/span><\/h2>\n\n\n\nIn the case of ShrikishenDhoot v. Kamalapurkar<\/em>, [(1965) 1 Comp LJ 233], the Court\nruled that in accordance with Section 248(7) of the Act, the liabilities of\nmembers, directors, managers & officers of the company continue even after\nthe dissolution of the company under this section and are enforceable against\nthem as if the company had never been dissolved. This judgement can be used to\nanswer the question above. It is important to remember that even after the\nbusiness is dissolved, any directors’ or members’ existing liabilities will\nremain in effect. They will only be held accountable if they were individually\nliable for the claim before the firm was dissolved.<\/p>\n\n\n\nAdditionally, in the case of Narmada Chaudhary and Others v. Motor\nAccidents Claims Tribunal<\/em> (1985 58 CompCas 596 Gauhati), the Hon’ble\nGauhati High Court held that the liability of members of a defunct company is\nlimited to the extent of their contribution as in case of the company’s winding\nup. As a result, the obligations of any members, directors, managers, or\nofficers of a company that have been struck off under Section 248 of the Act\nare restricted to their duties to the business alone; they are not personally\naccountable to third parties.<\/p>\n\n\n\n<\/span>Restoration of a Company within 20 Years<\/span><\/h2>\n\n\n\nBy court order, a company that has been\ndissolved under Section 560 may be reinstated on the Register of Companies.\nDuring the reinstatement, the Court may, by the order, give such directions and\nmake such provisions as are necessary to put the company and all other parties\nin the same position as if the company’s name had not been struck off. The only\nparties that may submit a request for restoration are the companies, the\nmember, or the creditor. It must be proven that the petitioner was a member or\ncreditor of the company at the time it was dissolved and that anybody claiming\nto be one later on – whether they were aware of the dissolution or not\u2014was not\neligible to do so. One who purchases stock or debt from a business whose name\nhas been stricken off the register and who is aware of this fact at the time of\npurchase is not considered a \u2018person aggrieved\u2019 within the meaning of this\nsub-section. A third party lacks locus standi to submit an application unless\nhe is a creditor. The personal representatives of a dead member or creditor are\nincluded in the definitions of \u2018member\u2019 and \u2018creditor\u2019 in Sub-section (6) of\nSection 560. It is appropriate to order the restoration of a company’s name\nwhen a lawsuit is actually pending against it and is being contested by it at\nthe time that its name has been removed from the register, especially when the\ndirectors were aware of the contested litigation and were actively participating\nin it.<\/p>\n\n\n\n
<\/span>What Is The Procedure For Sticking Off The Name Of The\nCompany?<\/span><\/h2>\n\n\n\nThe process for removing the names of\ndissolved firms that aren’t conducting any business from the register of\ncompanies kept by the Registrar is outlined in Section 560. Based on the data\nin his possession, the Registrar must be satisfied that the company is not\nconducting business, particularly in the case of organisations that have not\nsubmitted the required returns and documents, such as annual reports and\nbalance accounts for the preceding years. Under this clause, the ROC may also\nremove a business’s name at the request of the corporation.<\/p>\n\n\n\n
There are two circumstances in which this\nis possible:<\/p>\n\n\n\n
- The Registrar struck off on his\nown initiative. <\/li>
- Rejecting the company’s application.<\/li><\/ol>\n\n\n\n
Let’s go into further depth about each of\nthe situations.<\/p>\n\n\n\n
- Striking Off By Registrar On\nHis Own Motion<\/strong><\/li><\/ul>\n\n\n\n
The process is as follows for the Registrar\nto remove a company from the Register of Companies on his own initiative in\naccordance with Section 560: <\/p>\n\n\n\n
When the Registrar has good grounds to\nthink that a company is not doing business or operating, he or she must write a\nletter by mail to the firm asking if it is conducting business or operating.\nThe business should have one month to respond.<\/p>\n\n\n\n
If the Registrar does not receive a\nresponse to the letter mentioned above within a month of sending it, he or she\nwill send a second letter to the company referencing the first letter and\nnoting that – – No response to the first letter has been received; and – If an\nanswer is not received to the second letter within a month of its date, a\nnotice will be published in the Official Gazette with a view to striking the\ncompany’s name off. This second letter must be delivered through registered\nmail and delivered within fourteen days of the first letter’s expiration date,\nwhich is one month after the first letter was delivered.<\/p>\n\n\n\n
Final removal notice: If the company\nreplies to the second letter indicating that it is not operating or carrying on\nbusiness, or if the Registrar does not hear back from the company within a\nmonth of sending the second letter, he may proceed to strike the company off\nthe Register of Companies. Two actions will be taken to accomplish this: <\/p>\n\n\n\n
Sending a notice to be published in the\nOfficial Gazette stating that, unless a reason is given to the contrary, the\nname of the company stated in the notice will be removed from the registry and\nthe company will be dissolved three months after the date of the notice;<\/p>\n\n\n\n
Sending the aforementioned notification through\nregistered mail to both the business and the tax authorities. If the Registrar\ndetermines that a company is in liquidation and that either no liquidator is\nacting or that the company’s affairs have been fully wound up and the returns\nrequired to be filed by the liquidator have not been filed for a period of six\nmonths, the Registrar shall follow a similar procedure of publishing the notice\nin the official Gazette. Additionally, a copy of this notification must be sent\nby registered mail to the company or liquidator, as appropriate.<\/p>\n\n\n\n
Notification and removal of the company: If\nthe company fails to provide sufficient justification prior to the expiration\nof three months from the date of the notification specified above, the\nRegistrar may strike the company’s name from the register and publish notice of\nthis in the Official Gazette. The corporation will be dissolved as soon as this\nnotification is published in the Official Gazette. Below is a sample\nnotification that was published in the official gazette.<\/p>\n\n\n\n
- Striking off on company\u2019s\napplication<\/strong><\/li><\/ul>\n\n\n\n
- Upon receiving a request from the company to be removed from the register on the grounds that it is a defunct company, meaning it is no longer active or conducting business, the Registrar may use the authority granted to him by section 560. The process to be used is as follows:<\/li>
- Board resolution: Although section 560 does not specifically state this, it would be preferable for the company’s Board of Directors to adopt a resolution directing the Registrar of Companies to submit an application to have the company struck from the Register of Companies in accordance with section 560. At the conclusion of the research, a model Board resolution is included as Annexure I.<\/li>
- Application to Registrar: In accordance with the Board resolution, an application shall be sent to the Registrar in electronic form no. 61 for the firm’s removal from the Register and declaration that it is a defunct corporation. e-form 61 application must be supported by:
- A copy of the board’s resolution <\/li>
- Application in detail (an example of an application form is included as Annexure II at the conclusion of this research);<\/li>
- Zero balance sheets<\/li>
- A properly supported statement signed by at least two directors, including the managing or whole-time director, stating that the company has no assets or liabilities and has not been conducting any business or operations should be lodged with the Registrar of Companies. (A sample affidavit is included as Annexure III at the conclusion of this research.)<\/li>
- An indemnity bond signed by two directors (at least one of whom should be the managing or whole-time director) stating that they will be responsible for any obligations of the business even after its name is removed from the register in accordance with section 560 of the Companies Act. (A sample indemnification bond is included as Annexure IV at the conclusion of this investigation.) <\/li>
- Any more details may be included as an optional attachment.<\/li><\/ul><\/li>
- Any additional information required in relation to this application should be sent electronically to the ROC using Form No. 67 as an amendment.<\/li>
- Notification and striking-off: Upon receiving the application, the Registrar may proceed to strike the name of the company off the Register and publish notice thereof in the Official Gazette if satisfied that the application satisfies the basic requirements outlined in section 560 and the DCA’s (now Ministry of Corporate Affairs) guidelines for striking companies off. (The notification sample is located in Annexure V at the conclusion of this study.)<\/li><\/ol>\n\n\n\n
<\/span>Forms for Strike-Off Process<\/span><\/h2>\n\n\n\nThe whole set of forms for the strike-off\nprocess is shown below:<\/p>\n\n\n\n
| \n S.no. \n <\/td> | \n Form \n <\/td> | \n Description \n <\/td><\/tr> |
| \n 1\n <\/td> | \n SKT-1\n <\/td> | \n Notice\n by Registrar for Removal of name of a company from Register of companies\n <\/td><\/tr> |
| \n 2\n <\/td> | \n STK 2\n <\/td> | \n Application\n by company to ROC for removing its name from register of Companies\n <\/td><\/tr> |
| \n 3\n <\/td> | \n STK 3\n <\/td> | \n Indemnity\n Bond\n <\/td><\/tr> |
| \n 4\n <\/td> | \n STK 4\n <\/td> | \n Affidavit\n <\/td><\/tr> |
| \n 5\n <\/td> | \n STK 5\n <\/td> | \n Public Notice in case of Section 248(1)\n <\/td><\/tr> |
| \n 6\n <\/td> | \n SKT 6\n <\/td> | \n Public\n Notice in case of Section 248(2)\n <\/td><\/tr> |
| \n 7\n <\/td> | \n SKT 7 \n <\/td> | \n Notice\n of Striking Off and Dissolution\n <\/td><\/tr><\/tbody><\/table>\n\n\n\n |