Bara Machines Private Limted vs Registrar Of Companies, Gujarat

M.B. Gosavi, J

The Appellant viz. Mr. Bharatkumar Jivanlal Patel member/Shareholder and the Director of the Company of M/s. BARA MACHINES PRIVATE LIMITED filed this Appeal under Section 252(1) of the Companies Act, 2013, against the order of Registrar of Companies (hereinafter referred to as 'ROC'), Gujarat dated 14.08.2018, whereby and where-under the ROC, Gujarat pleased to struck off the name of the Company from the Register maintained for live Companies. By order impugned, the ROC, Gujarat held that since the Company failed to file Annual Returns for two consecutive preceding years with the Office of the ROC, Gujarat, the inference can be drawn that Company is not carrying any business or operation, hence, its name is struck off.

The Appellant in paragraph No. 4(iii) of the application admitted that the Company did not file Annual returns for the financial years i.e. 2015-16, 2016-17 & 2017-18 due to reasons beyond the control of the Company, but he did not assign any specific reason, which was beyond his Control. However, he asserted that the Company is not a shell Company and it is carrying its business activities and the fact is evident from the Annual Returns, recently being prepared by its Statutory Auditor.

The Appellant further contended that due to striking off the name of the Company, the Director's Identification Number(DIN) is de-activated, thereby, he has been greatly prejudiced. To maintain this Appeal, he stated that ROC, Gujarat did not send Notice to him or to the Company under Section 248(1) of the Companies Act, 2013. He requested to allow the Appeal and direct ROC, Gujarat to re-enter the name of the Company in the requisite Register maintained by ROC, Gujarat and he may be allowed to file Annual Returns for all defaulting years.

The Notice to this Appeal was served on ROC, Gujarat. In responses to that ROC, Gujarat filed reply dated 01.07.2019. At the outset, the ROC, Gujarat contended that, the Appeal is not maintainable. Before striking off the name of Company, notice under Section 248(1) of the Companies Act, 2013 was duly served. The Company did not submit the representation to him as contemplated under Section 248(2) of the Companies Act, 2013. Since, the Company did not file Annual Returns from year 2016 onwards, the inference was drawn that Company did not carry any business activities for more than two years, hence, its name was struck off. According, to the ROC, Gujarat, the Appellant erroneously filed this appeal under Section 252(1) of the Companies Act, 2013 instead of filing application Section 252(3) of the Companies Act. According to the ROC, Gujarat, the order of striking off the name of the Company was correctly passed after serving Notice under Section 248(1) of the Companies Act, 2013.

The ROC, Gujarat, in his reply also suggested this Tribunal to pass order of restoration of name of the Company, subject to payment of exemplary cost and allow him to issue fresh Registration Certificate in the name of Company. He also prayed that the Director(s) of the Company may be directed to make good for the offence arising out of non-compliance of Section 262 & 220 of the Companies Act, 2013 etc.

We perused the record and proceedings. We heard Learned Counsel Mr. Pavan Godiawala for the Appellant at length. In view of the material available on record and submission made at the bar the following points arise for our determination, we record our findings thereon for the reason stated below:

Findings:

Sr. No.

Appeal

Findings

1

Whether this application under section 252(1) of the Companies Act, 2013 is maintainable ?

Yes

2

If not, whether we can convert this Appeal into Application under Section 252(3) of the Companies Act ?

Does not arise

3

As to what relief an Appeal is entitled to and what contention

As per final order

REASONS:

Point No. 1

This Appeal under Section 252(1) of the Companies Act, 2013, filed by one of the Directors of the struck off Company i.e. M/s. Bara Machines Private Limited. We have gone through the pleadings of the parties. We found that the action of the ROC, Gujarat, striking off the name of the Company is challenged only on sole ground that ROC, Gujarat, ordered the striking off the name of the Company without sending Notice under Section 248(1) of the Companies Act, 2013. Section 248(1) of the Companies Act, 2013, mandates ROC : "he shall send a notice to the company and all the directors of the company, of his intention to remove the name of the company from the register of companies and requesting them to send their representations along with copies of the relevant documents, if any, within a period of thirty days from the date of the notice".

In this case, the Appellant stated that no Notice has been served on him and/or the Company, whereas, the ROC, Gujarat contended that such Notice was duly served to him. It is the assertive statement of the ROC, Gujarat in his reply dated 01.07.2019, that Notice under Section 248(1) of the Companies Act, 2013 was duly sent before removing the name of the Company from the Register maintained by it. Obviously, it was for ROC, Gujarat to prove this fact of service of notice upon the Appellant and his Company before removing the name of the Company from the record. We note that the ROC, Gujarat did not produce on record even copy of the Notice alongwith proof of service of Notice upon the Appellant and / or the Company. The ROC, Gujarat did not produce on record Gazette Notification of such Notice as contemplated under Section 248(4) of the Companies Act, 2013 [" (4) A notice issued under subsection (1) or sub-section (2) shall be published in the prescribed manner and also in the Official Gazette for the information of the general public". ]

It is not disputed that the name of the Appellant's Company has been removed from the Register by the ROC, Gujarat without sending Notice to him U/s 248(1) of the Companies Act, 2013, hence, we hold the action of ROC, Gujarat is honest in the eyes of law and the appeal succeeded on the ground alone we answer this point in affirmative.

Point No. 2

Since, we hold that this appeal filed under Section 252(1) of the Companies Act, 2013 is maintainable, we do not feel it necessary to record findings against the Respondent No. 2 as this point does not survive.

We note that the ROC, Gujarat unnecessarily entered into advisory mode and contended in paragraph No. 11 of its say that Appellant ought to have file application under Section 252(3) of the Companies Act, 2013, instead of appeal under Section 252(1). Be that as it may, we record findings against this point as it does not survive.

We have recorded our findings against point No. 1 that this appeal is maintainable, hence we allow the same and direct to the ROC, Gujarat to reenter the name of the struck off Company in the register maintain by him for live Companies. We pass following order:

ORDER

The Appeal succeeded and stands disposed of.

The ROC, Gujarat is directed to re-enter the name of struck of Company i.e. M/s. Bara Machines Private Limited., in the register maintain for live Companies within 15 days and allow the Appellant to submit all pending Annual returns subject to fees of late fees, if any.

The Appellant's DIN be activated.

Co. Appeal No. 67/252(l)/NCLT/AHM/2019 is allowed and stands disposed of.