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Application to Reinst​​ate Company Name under Section 555(1) of the Companies Act 2016

Updated: Jan 23, 2022

Procedure for reinstating the company name that has been revoked by the Registrar of Companies under section 549 and/or section 550 of the Companies Act 2016 (Act)


INTRODUCTION


S.549 Act gives legal authority to the Registrar of Companies to remove a non-functioning company from the register companies held by the Companies Commission of Malaysia (SSM).


Any company that fails to comply with the provisions of s.68 and s.259 Act i.e. to file the annual return, and financial statements and reports for each year it operates are a criterion taken into account by the Registrar when making a decision to remove a company from the company register.


Status of companies that have been canceled pursuant to the provisions of s.549 and/or Act section 550 becomes dissolved upon prescribed notices published in the gazette pursuant to the provisions of Act s.551.


Any party aggrieved by the dissolution of any companies under s.549 and/or Act section 550 may make application to the court to reinstate the company names that have been dissolved into the register of companies.


Application to reinstate the company name in the register may be made at any time within seven (7) years after company name was canceled.


LEGAL PROVISIONS


Application to reinstate the company name in the companies register held by the Companies Commission of Malaysia shall made in accordance with the provisions of Act s.555 and Rule 88 of Rule 2, Rules of Court 2012 (MOH 2012). S.555 Act and Rule 88 of the Rules 2, MOH 2012 provides as follows:


Act Section 555 (1) : Any person who is aggrieved by the decision of the Registrar to strike off the company may, within seven years after the name of the company has been struck off, apply to the Court to reinstate the name of the company into the register.


Act Section 555 (2) : If the Court is 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 be reinstated in the register, the Court may order that:


(a) the name of the company be reinstated; and


(b) 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.


Act Section 555 (3) : Upon an office copy of the order is lodged with the Registrar, the company shall be deemed to have continued in existence as if its name had not been struck off.


Rule 88 Rule 2, Rules of Court 2012: “Except for the proceedings specified in Appendix C relating to the winding up of companies and capital reduction under the Act, proceedings under the Act shall be commenced by originating summons”


Pursuant to Rule 88 of Rule 2, MOH 2012 application to enter reinstatement of the company name into the register should begin with ‘Originating Summons’. This Originating Summons shall be supported by an Affidavit of Support explaining the reasons and evidence to support the application.


If the company is still operating when the company name is canceled, the applicant must submit evidence to show the company operates. Annual Returns and Financial Statements that have been audited (current and outstanding) shall be prepared and exhibited in the applicant’s Affidavit of Support to support the application.


If the company has assets when the company name is canceled, the applicant must submit evidence showing the existence of such assets. For example, a copy of a land title deed (Grants), Bank Accounts and more.


The Registrar of Companies (SSM) as the regulatory body for the company shall be named as the ‘Defendant’ in this application. SSM is also responsible for effecting the order granted by the Court. Therefore, SSM will examine all application to reinstate the company name in the register before informing the Court of its position to either support or oppose the application.


ATTACHMENT


The following are examples of ‘Cause Papers’ for applications to reinstate company name in the register:


Appendix A - Originating Summons


Appendix B - Affidavit of Support


ATTACHMENT A


Date of submission:


Date of hearing:


IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR


(TRADE DIVISION)


ORIGINATING SUMMONS NO.:

______________________________


In the Matter of ABC SDN. BHD. (Company No.:

12345-A)


DAN


In Matters Concerning Section 549 (and/or section

550) and Section 555 of the Companies Act 2016


DAN


In Matters Concerning Rule 1 Rule 8 Rule 88 Rule 2,

and Rule 92 Rule 4 of the Rules of Court 2012


ANTARA


1. DEFGH

(K/P No.: xxxxxx-xx-xx)


2. ABC SDN. BHD.

(Company No.: 12345-A) … PLAINTIFF-PLAINTIFF


DAN


COMPANY REGISTRAR,

MALAYSIAN COMPANIES COMMISSION ... DEFENDANT


____________________


SUMMONS

____________________


Allow the Defendant whose address is at Menara SSM,@ Sentral, No. 7 Station Road Sentral 5, Kuala Lumpur Sentral, 50623 Kuala Lumpur appeared before the Judge in Room on the xxxx day of the xxxx month, at xxxx morning/evening upon hearing of an application by the claiming Plaintiffs against the Defendant named above for the following reliefs:-


1. That the name of Syarikat ABC Sdn Bhd (Company No .: 12345-A) is re-entered into the Register of Defendant Companies pursuant to the provisions of Section 555 (1) of the Company Act 2016;


2. That the Plaintiffs undertake to lodge the documents statutory including but not limited to Audited Financial Statements from year xxxx up to year xxxx, Annual Return from year xxxx to year xxxx for the years it was not lodged and the documents relating to the Charge (if there are);


3. That the administrative cost of RM2,000.00 be paid by the Plaintiffs within thirty (30) days from the date this order is granted.


4. That the costs of this application be paid by the Plaintiffs; and


5. Further Orders deemed expedient by this Honorable Court.



Dated on the xxxx day of the xxxx month



..............................

Senior Registrar

High Court

Kuala Lumpur


Memorandum to be revealed on summons


This suit is taken by Messrs. Xxx whose address is at xxxxx, solicitors to the aforesaid Plaintiff.


Note: This summons cannot be served more than 6 calendar months after the date above unless renewed by order of the Court. is considered fair and expedient by the Court.


This Originating Suit was filed by xxxx, solicitors on behalf of the Plaintiffs which has an address for delivery at xxxxxx.


[Phone No.: xxxxxx] [Fax: xxxxxx] [Ref: xxxxxx]



APPENDIX B


Date of submission:


Date pledged:

Date of hearing:



IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR


(TRADE DIVISION)


ORIGINATING SUMMONS NO.:


______________________________



In the Matter of ABC SDN. BHD. (Company No.:


12345-A)



DA



In Matters Concerning Section 549 (and/or section


550) and Section 555 of the Companies Act 2016



DAN



In Matters Concerning Rule 1 Rule 8 Rule 88 Rule 2,


and Rule 92 Rule 4 of the Rules of Court 2012



ANTARA


1. DEFGH


(K/P No.: xxxxxx-xx-xx)




2. ABC SDN. BHD.


(Company No.: 12345-A) … PLAINTIFF-PLAINTIFF




DAN




COMPANY REGISTRAR,


MALAYSIAN COMPANIES COMMISSION ... DEFENDANT


____________________


AFFIDAVIT OF SUPPORT

____________________


I, DEFGH (K/P No.: xxxxxx-xx-xxxx) am a Malaysian citizen who of sufficient age and addressed at xxxxxxx solemnly pledged and declared as follows:-


1. I am one of the Directors and Shareholders of ABC Company Sdn. Bhd. (Company No.: 12345-A), a company incorporated in Malaysia under the Companies Act, 1965/Companies Act 2016.


2. I have indeed been authorized to pledge this affidavit for on behalf of the Second Plaintiff and also on behalf of xxxx, i.e. another Director at in the Second Plaintiff.


A copy of the Affidavit affirmed by xxxx on xxxx/the confirmation letter expressed his consent to authorize me to pledge this affidavit on his behalf in this application is attached and marked as “Exhibit DEFGH-1”


3. The facts stated here are to the best of my knowledge based the records belonging to the Second Plaintiff to which I have full access unless stated the information provided is based on my beliefs alone.


MATERIAL FACTS


4. The Second Plaintiff was registered at xx.xx.xxxx and its objects of business is xxxxxxxx.


5. I also state that the Directors of the Second Plaintiff are also the Shareholders in the Second Plaintiff consisting of two individuals namely:


a. DEFGH (K/P No.: xxxxxx-xx-xx); and


b. xxxx (K/P No.: xxxxxx-xx-xx)


A copy of the Company Search is attached and marked as “Exhibit DEFGH2”.


6. I have been advised by my solicitor that the application for reinstating the name of the Second Plaintiff is necessary because at all material times, the Second Plaintiff is an active and operating business since its inception until now.


7. I also state that this application is necessary and important for ensuring that the Second Plaintiff is able to carry on his business lawfully. Furthermore the Second Plaintiff is in the process of developing its business which will indirectly provide deep competitiveness in the field of business engaged by the Second Plaintiff and able to generate economy for the country.


8. I further state that through the Financial Statements that have been audited from year xxxx to year xxxx and Draft Financial Statements year xxxx, it indicates that the Company is actively conducting business and operating at all material times and earned profits in previous years.


A copy of the “Annual Return” from year xxxx to year xxxx and the company “Audited Financial Statement” from year xxxx to year xxxx and Draft Financial Statements for year xxxx are attached and marked collectively as “Exhibit DEFGH-3”.


DISSOLUTION OF ABC SDN. BHD. (COMPANY NO.: 12345-A) BY DEFENDANT


9. On and/or around the month of xxxxx xxxx the First Plaintiff was notified that the Second Plaintiff has already been removed from the Register of Companies at xx.xx.xxxx when the Notice under Section 551 (2) is gazetted at xx.xx.xxxx in Government Gazette numbered xxxxxx.


10. Consequently, the Second Plaintiff through his employees and/or agents has contacted the Defendant and was informed by the Defendant that the Second Plaintiff was dissolved due to the failure of the Second Plaintiff to hand over the statutory documents to the Defendant from the year xxxx until xxxx i.e. Audited Financial Statements and Annual Statements.


COMPANY SECRETARY SERVICES


11. Upon learning that the name of the Second Plaintiff has been removed from the Register

the company agents, representatives and/or employees of the Second Plaintiff have contacted Messrs xxxx Sdn. Bhd. which is a certified company secretary which service is used by the Second Plaintiff in respect of the same matter.


12. However, no reasonable explanation was given by Messrs xxxx Sdn. Bhd. for their failure to lodge statutory documents with the Defendant on behalf of the Second Plaintiff.


13. The Plaintiffs at all material times believed that the statutory documents i.e. Audited Financial Statements and Annual Statements have been lodged by Messrs. Xxxx Sdn. Bhd. with the Defendant and are in an orderly manner in accordance with the provisions of the Companies Act 1965/Company Act 2016.


THE COMPANY IS STILL ACTIVE IN DOING BUSINESS [DURING] THE COMPANY NAME WAS CANCELED FROM THE COMPANY LIST


14. I have further been advised by my solicitor that the Second Plaintiff's reinstatement into the Company Register is material for a number of reasons below:-


14.1 At all material times, the Second Plaintiff is actively carrying on business and recorded encouraging profits. This can be seen through Audited Financial Statements from year xxxx to year xxxx and Draft Financial Statements for year xxxx which have been exhibited in the Exhibit DEFGH-3.


14.2 The Second Plaintiff was also awarded the project by xxxx in the year xxxx for work xxxx and in year xxxx for work handling, send and unload xxxx and xxxx at xxxx. The project is still

again in force and this project is in the public interest as well as providing a boost to the national economy.


A copy of the Agreement xxxxx dated xxxxx and the Official Letter of Award (“Official Award Letter”) from xxxx dated xxxx is attached and marked collectively as “Exhibit DEFGH-4”.


14.3 If the Second Plaintiff is not reinstated by the Defendant, the Plaintiff will be unable to grow his business.


14.4 If the name of the Second Plaintiff is not reinstated, it is very detrimental, extremely dangerous and will cause harm which cannot be compensated when the economic activities of the Second Plaintiff's company cannot expand and at the same time will affect the employees of the Second Plaintiff who are still serving with the Second Plaintiff as well as putting the Second Plaintiff at risk to lawsuit action for failing to comply with the terms of the contract entered into between the Second Plaintiff and xxxxx.








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