Arounwind Power Private Limited vs Registrar Of Companies Gwalior Madhya Pradesh

The present petition is filed on 20.06.2023, by Mr. Zulfiqar Ali Malik being director of M/s Arounwind Power Private Limited (the Company) under section 252(1) of the Companies Act, 2013 (the Act) against the order of striking off the name of the company passed by the Registrar of Companies, Gwalior under section 248(5) of the Act, the Respondent herein. The present appeal is within the limitation period stipulated under section 252 of the Act.

The company was incorporated as a private limited company with the Registrar of Companies, Gwalior on 21.06.2010 under the provisions of the Companies Act, 1956, with CIN No. U40100MP2010PTC023811, having its registered office at A-4, Chinar Palace Koh-E-Fiza, Bhopal, Madhya Pradesh-462001. The Authorized Share Capital of the company is Rs 5,00,000/-. The Issued, Subscribed, and paid-up Share Capital is Rs 5,00,000/-. The main object of the company as per the Memorandum of Association of the company is to carry on the business of general electric power supply in all its branches, etc.

Submissions made by the petitioner in its petition and presented/argued by the learned counsel are summarized hereunder:

(i) The company was regularly maintaining its statutory returns and has filed the same till the financial year 2016-17. Further, the company has also filed Income Tax returns till the financial year 2018-19.

(ii) The company is a family-held company and the entire control and management of the company was laid in the hands of Mr. Zulfiqar Ali Malik, director of the company, who was responsible for all the day-to-day operations, decisions, and management of both financial and non-financial matters of the company. Over a considerable period of time Mr. Zulfiqar Ali Malik was suffering from various health issues and pursuant to which he was completely bedridden since the year 2018 and was entirely dependent upon his wife and children. Due to the said illness, the financial condition of the family immensely deteriorated. Curtailing financial conditions and lack of professional guidance, the company could not file the annual returns and financial statements on the MCA portal.

(iii) In the year 2011, the company was approached by M/s Suzlon Energy Limited with an offer to invest in the wind farm to be developed by them in Mahuria, District Shajapur, Madhya Pradesh. Considering the opportunity, the company executed a memorandum of understanding with M/s Suzlon Energy Limited for establishing a 30 MW wind power project dated 11.05.2011 and 10.06.2011 with a total project cost of Rs 299,10,00,000/-

(iv) The Registrar of Companies, Gwalior has issued a notice under section 248(5) of the Act in the form STK-7 No. ROC-Gwalior/248(5)/2022/109 dated 12.04.2022 striking off the name of the company.

The petitioner has asserted and supported its averments with the documents and records showing that the company was in operation and doing business during the period of striking off the name of the company and has produced the following documents about it being in operation and functional during the period of striking off:

(i) Copies of financial statements for the financial year 2015-16, 2016-17, 2017-18, 2018-19, 2019-20, 2020-21, and 2021-22.

(ii) Copies of the balance sheet. The balance sheet for the year ending 31.03.2022 reflects reserve and surplus of Rs (79,707/-), long-term borrowing of Rs 86,590/-, current liabilities of Rs 7,500/-, and cash of Rs 14,383/-.

(iii) Income Tax returns for the financial year 2015-16 to 2018-19.

(iv) Copy of memorandum of understanding dated 11.05.2011 and 10.06.2011.

The Registrar of Companies filed its reply dated 28.07.2023 and submitted that the name of the company was struck off from the register of the Companies on Suo-Moto basis on 12.04.2022 due to non-filing of annual returns and balance sheet. Further, the Registrar of Companies prayed that the present appeal may be decided on merit subject to filing of all the pending financial statements with additional fees as per the requirements of the Companies Act, 2013/1956.

The grounds contemplated under section 252 of the Act, that the company was, at the time of its name being struck off, carrying on business or was in operation, or otherwise it is just that the name of the company be restored to the Register of Registrar of Companies, are required to be satisfied before exercising jurisdiction to restore the company to its original name on the Register of the Registrar of Companies.

The appellant though has not submitted sufficient evidence that the company has been in operation, but as per the balance sheet for the year ending 31.03.2022, the company has reserve and surplus of Rs (79,707/-), long-term borrowing of Rs 86,590/-, current liabilities of Rs 7,500/-, and cash of Rs 14,383/-. Under the provisions of section 252(3) of the Act, this Tribunal is vested with the discretion, where the company whose name has been struck off and such company is able to demonstrate that it is just to do so, to restore the name of the company in the Register of the Registrar of Companies in the interest of all stakeholders, including the petitioner herein who seeks restoration of the name of the company in the Register maintained by the Registrar of Companies. In the facts and circumstances of the case, we are of the considered view that the company deserves to be restored. Accordingly, the restoration of the company’s name to the Register of the Registrar of Companies is ordered subject to its filing of all outstanding documents with proper filing fees along with additional fees required under law and completion of all formalities, including payment of any late fee or any other charges which are recoverable by the Registrar of Companies for the late filing of statutory returns, and also subject to payment of the cost of Rs 25000/- to be paid to Prime Minister’s Relief Fund. The name of the company shall then, as a consequence, stand restored to the Register of the Registrar of Companies.

As per section 252(2) of the Act, the petitioner is directed to submit a copy of his order to ROC within 30 days from its receipt.

The Registry is directed to issue a copy of the order to the parties after the completion of all the necessary formalities.

As a result, CP/14/MP/2023 is allowed and disposed of.