Can I reuse a company name after strike off from SSM?
On 30 January 2023, Suruhanjaya Syarikat Malaysia (SSM) issued a guideline related to the application to Court to reinstate the name of the company under Section 555(1) of Companies Act (CA), 2016.
This guideline is useful to the public (especially Company Directors) who felt upset by SSM's decision to strike off their company under Section 549.
SSM Power To Strike Off
This section gives SSM the legal power to strike a company off in the registrar where the company:
(a) is not carrying on business or operation;
(b) has contravened any of this act;
(c ) is being used for unlawful purposes; and
(d) is being wound up.
This reinstatement is applicable within 7 years after the name has been struck off by SSM.
How does it work?
Application process according to
1) Order 88 rule 2 of the Rules of Court 2012; and
2) Section 555 of CA, 2016.
The proceeding shall be commenced by the applicant (ie Plaintiff) to file in court an originating summons (“Originating Summons”).
The Originating Summons needs to be supported by an Affidavit in Support (“Affidavit”) setting out the grounds and evidence in support of the application.
The Guidelines about the application for reinstatement under Section 555 of CA 2016 are summarised below: -
1. The Defendant: SSM is to be named as the defendant in the application;
2. Contents of the Affidavit:
The Affidavit must include the following: -
a) Info on the directors of the Company;
b) Info on the shareholders;
c) Consent letter from the other directors;
d) Address of the registered office;
e) Ground of the application; and
f) Other necessary and relevant facts (for example Annual Return and Financial Statement to prove that the company is in existence and operation or bank transaction reflected in the bank statement or there is the existence of ownership of assets).
The orders sought from the Court must include:
a) The Plaintiff lodges the overdue statutory documents not submitted previously such as Financial Statements, Annual Return and other related documents if any;
b) The cost of the proceedings of RM2,000 be paid by the plaintiff within 30 days of the order made;
c) An order that the cost of the application is borne by the plaintiff.
As the result, SSM may oppose an application that does not fulfill the requirements and the court ultimately has the discretion of whether or not to allow an application for reinstatement under Section 555 of CA 2016 to have proceeded.
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Published : 6-Apr-2023