Reinstating a Company struck off by SSM

Question : If my Company is struck off by SSM for failing to file the Annual Returns and Financial Statements, can I reinstate my Company?

Usual circumstances whereby a Company is struck off would be that a Company failed to file the Annual Return and Financial Statement for a period of time.

Law to restore the Company to the Registrar.

It is provided that a Company can be restored to the Registrar of the Company under Section 308(5) of the Companies Act.

“308. Power of Registrar to strike defunct company off register.

“If any person feels aggrieved by the name of the company having been struck off the register, Court on an application made by the person at any time within fifteen years after the name of the company has been so struck off 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 name of the company to be restored to the register, and upon an office copy of the order being lodged with the Registrar the company shall be deemed to have continued in existence as if its name had not been struck off, and the Court may by the order give such directions and make such provisions as seem 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”

In Order to invoke Section 308(5) the Company must satisfy three limbs of the Act namely:

·          That the Applicant is a person aggrieved within Section 308(5)

·         That the application is made within 15 years after the Company has been struck off; and

·          That at the time of the striking off, the Company was carrying on business or in operation.

Steps to Take

The Company would need to file an Originating Summon in Court together with an Affidavit In Support indicating that the Company is still in operations together with proof e.g. latest Annual Return and Financial Statement and Assets of the Company.

This Originating Summon could be filed by the Lawyer appointed by the Company.

 

Prayer/Order which is needed from Court:

“bahawa nama syarikat ABC (No. Syarikat…) dimasukkan semula ke dalam daftar Syarikat Defendan menurut peruntukkan Seksyen 308(5) Akta Syarikat 1965”;

Once the Petition is filed, the Court may give directions: -

To file a further affidavit in Court to complete the unaudited balance sheet and profit and loss accounts for the Years which is has not complied with.

In the alternative to exhibit the unaudited balance sheet and profit and loos accounts for the current years and provided an undertaking to SSM to provide an audited accounts to the SSM in the near future. 

Affidavit should also contain a confirmation by the company to pay all fees and compounds to be, or as may be, imposed on it by the SSM, which may come up to RM2,000-00. 

Further enquiries please email to : eremyphang@gmail.com

 

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