1988 PLP 1538 (CLC)

(a) Companies Ordinance (XLVII of 1984)‑‑ ___S. 439(6)‑‑Companies Act (VII of 1913), 5.247(1), (2) (3)‑‑Petition for restoration of name of company on register of Companies Entitlement to‑‑Period of limitation when not applicable‑‑Name of Entitlement company was removed on the ground that same had ceased to do it: business‑‑Material on record showed that during relevant years such company was not only functioning but was doing active business as was evident from return of income filed by it for those years and amount of income‑tex paid thereon‑‑Petitioner was carrying on business and was in operation at the time its name was struck off from register of companies‑‑Period of limitation prescribed under S.439 of Companies Ordinance, for filing of such application, held, would not apply as name of company was removed under S.247, Companies Act, 1913, which did not prescribe any period of limitation for making application for restoration of name of company in the event of its removal‑‑Copies of notices issued to petitioner showed that only notices under subsections (3) & (5) of S.247, Companies Act, 1913 were published in official Gazette but notice issued under subsection (2) of said section was not .published in such Gazette, as required by law‑ Procedure prescribed by law having not been strictly followed petition for restoration of name of company on register of company was allowed. Tasawar Ali Hashmi for Petitioner. Date of hearing: 8th March, 1988. This petition under section 439(6) of the Companies Ordinance 1984, is filed by the Company for restoration of its name on the Register of Company maintained by the Registrar of Joint Stock Companies. The name of the Company was removed from the Register in 1981 after issuing notices under subsections (1), (2) and (3) of section 247 of the Companies Act, 1913, on 28‑1‑1976, 2‑12‑1980 and 31‑3‑1981 respectively. The case of the petitioner is that the Company has been carrying on business throughout this period but due to inadvertance the returns required under the Companies Act were not filed. It is also claimed that none of the notices issued by the Registrar under subsections (1), (2) and (3) of section 247 of Companies Act, 1913, were served on it and it came to know about striking off its name from the Register of the Companies only when in response to its letter, dated 30th June, 1986 submitting from 26 alongwith amended copy of the memorandum and Article of Association it was informed that the name of the petitioner has been struck off from the Register of the Company. In support of the contention that the company was in existence and carried on business regularly at the time of striking of its name from the register of the company, photo‑copies of Income‑tax returns for the assessment years 1976‑77 to 1984‑85 have been filed alongwith the petition. The Joint Registrar of Companies in his comments filed in the case in reply to the petition has stated that the petition is time‑barred as it has been submitted after about 5 years of its dissolution. It is also stated in the comments that notices issued by the Registrar Joint Stock Company under subsections (2), (3) and (5) of section 247 of the Companies Act, 1913 were dispatched by his office to the Company on the address of the registered office of the company and as such the reason given by the petitioner for their non‑receipt is not acceptable. The companies of the notices issued by the Registrar Joint Stock Companies to the petitioner under section 247 of the Act were not filed alongwith the petition. The petitioner was accordingly directed to file certified copies of the same. The petitioner has filed certified copies of the notices, dated 25‑4‑1979, 2‑12‑1980 and 31‑3‑1981 and 8‑12‑1981. In so far the objection regarding limitation raised by the Registrar in his comments is concerned the learned counsel for the petitioner contended that the limitation of three years prescribed under section 439 of the Companies Ordinance, 1984, is not applicable in the present case as the action was taken by the Registrar in the year 1981 under section 247 of the Companies Act, 1913 which prescribed no period for making an application for restoration of the name of Company under subsection (6) of section 247 of the Act. It is also contended by the learned counsel for the petitioner that as the income‑tax returns filed by the petitioner for the years 1976‑77 to 1984.‑.85 clearly show that the petitioner was not only in existence on the date of striking off its name from the Register of Companies but it is also sufficiently proved that it was functioning normally and as such it is just and proper that the name of the petitioner be ordered to be restored in the register of the companies. After hearing the learned counsel for the petitioner I am of the view that the petitioner has made out a case for restoration of its name on the register of the companies. Section 247 of the Companies Act, 1913 under which the action was taken by the Registrar Joint Stock Company against the petitioner provides for striking off name of a company which has ceased to do its business. From the material brought on record it is sufficiently established that during the years 1976 to 1985 the petitioner was not only functioning but was doing active business as is evident from the returns of income filed by it for these years and the amount of income‑tax paid thereon. I am therefore, satisfied that the petitioner was carrying on business and was in operation at the time its name was struck off from the register of the companies. With regard to the period of limitation prescribe under section 439 of the Companies Ordinance, for filing of such application, it is rightly urged by the learned counsel that it will not apply in the present case as the name of the company was struck off by the Registrar under section 247 of the Companies Act, 1913 in the year 1981 when Companies Ordinance, 1984 had not come into existence. It is quite clear from reading of subsection (6) of section 247 of the Companies Act that it did not prescribed any period of limitation for making an application for restoration of the name of the company in the event of its removal from the register of companies under section

247. In addition to above from the certified copy of the notices issued by the Registrar Joint Stock Company to the petitioner under subsections (1), (2) and (3) of the Companies Act, 1913, it appears that only notices issued under subsections (3) and (5) were published in the official Gazette as required but the notice issued under subsection (2) was not published in the official Gazette as required by law. As the procedure prescribed under the Act was not strictly followed I allow the petition and order that the name of the petitioner be restored in the register of the companies. The petitioner will, however, submit] the returns which were required to be filed by it under the law. The petition is accordingly allowed but there will be no order as to costs. A . A . / A‑355/ K Petition allowed