Believe Constructions Pvt. Ltd. vs Registrar Of Companies And Ors.

Present appeal is filed by Believe Constructions Private Limited (for brevity the ‘Company’), through its authorised representative Mr. Vipin

Bishnoi vide Board Resolution dated 26.04.2018 for revival, under Section 252 of the Companies Act, 2013 (for brevity ‘the Act’) against the

order of striking off the name of the company Believe Constructions Private Limited passed by the Respondent under section 248 (1) of the Act read

with Rule 7 of Companies (Removal of Names of Companies from the Register of Companies) Rules, 2016 published on 30.06.2017 vide notification

no. ROC/DEL/248(5)/STK-7/2879 following the Public Notice of Registrar of Companies, NCT of Delhi and Haryana for Strike Off of the Company

published on 27.04.2017 vide notification no. ROC-DEL/258/STK-5/721 by Registrar of Companies, the respondent herein.

Believe Constructions Private Limited (hereinafter referred to as the ‘Company’) was incorporated on 20.07.2004 as a Private Limited

company, limited by shares under the provisions of the Companies Act, 1956 having CIN U45201DL2004PTC128507.

The company is having its registered office at 2294, Laxmi Narain Street, Paharganj, New Delhi-110055.

The authorised share capital of the Company is Rs. 25,00,000/- divided into 2,50,000 equity shares of Rs.10 each. The issued, subscribed and paid

up Equity share capital of the Company is Rs. 1,00,000/- divided into 10,000 equity shares of Rs 10 each.

The main objects of the company are:

i. To carry on the business of construction or residential houses, hotels, motels, resorts, amusement parks, hospitals, business complex, disco club, bar,

commercial buildings, flats and factory’s sheds and buildings in or out of India and to act as builders, colonisers and civil and constructional

contractors.

And other main objects.

As per the notice of non- compliance of provisions of the Companies Act, 2013 in respect to filing of annual returns and financial statements for

years 2013-2014 to 2016-17, the name of the company was struck off in terms of provision of Section 248(1) of the Companies Act, 2013 read with

Rule 7 and Rule 9 of the Companies (Removal of Names of Companies from the Register of Companies) Rules, 2016.

The Appellant has submitted that the company was in operation and the business activities were carried out by the company during the period of

striking off but the reporting of such activities through Annual Returns and Financial Statement had not been filed with Registrar of Companies due to

inadvertence on part of the management.

The Appellant has brought forward the following facts about it being in operation and functional during the period of striking off:

i. The copy of financial statements of the company Believe Constructions Private Limited for the financial years 2013-2014 to 2016-2017. The

Statement of Profit and Loss for the year ended on 31.03.2017 reflects revenue from operations of Rs. 72,618,750 as against Rs 53,173,322 in the

previous financial year, the Balance Sheet as on 31.03.2017 shows cash and cash equivalents of Rs. 9,899,826.

ii. The copy of Bank Statement of Union Bank, from 28.06.2015 to 29.09.2017, reflecting various transactions done by the company during the period

of striking off and having closing balance of Rs. 22,26,458.19 /-- as on 29.09.2017.

iii. The copies of Income Tax Returns filed for the assessment years 2012-13 upto 2017-18. The tax paid for assessment year 2017-18 is NIL.

iv. The copy of Agreement to Sell dated 12.09.2017 executed by Mr. Ved Prakash S/o Sh. Ramji Lal R/o Madho Sighana, Distt. Sirsa, Haryana in

favour of the appellant company Believe Constructions Private Limited, of property situated at Khewat No.49/47, Mustil No. 236, Kila No. 1(8-0),

10(4-9), Mustil No. 215, Kila No. 21/2(7-14), Mustil No. 236, Kila No. 9(8-0), Mustil No. 271, Kila No. for total consideration of Rs. 16,25,00,000/-.

v. The copy of Agreement to Sell dated 12.09.2017 executed by M/s. Arnya Infrastructure Pvt. Ltd. having its registered office at Nirmal Towers-

102, Barakhamba Road, New Delhi in favour of the appellant company Believe Constructions Private Limited, of property situated at Plot No. 200,

measuring 502 sq. yrds situated in residential colony knows as sector-38, Urban Estate, Gurgaon, Haryana for total consideration of Rs. 5,50,00,000/-.

vi. The copy of Agreement to Sell dated 12.09.2017 executed by Mr. Sandeep Kumar S/o Sh. Krishan Kumar R/o C-631, New Friends Colony,

(S.F.), New Delhi in favour of the appellant company Believe Constructions Private Limited, of property situated at Plot No. 4737BSP, measuring 410

sq, mtr. (491 sq. yrds) situated in residential colony known as sector-23-23A, Urban Estate, Gurgaon, Haryana for total consideration of Rs.

1,75,00,000/-.

vii. The copy of Agreement to Sell dated 12.09.2017 executed by Mr. Vikash Tanwar S/o Sh. Vijender Singh R/o Behind DAV Public School, Bank

Colony, Bhiwani, Haryana in favour of the appellant company Believe Constructions Private Limited, of property situated at Khewat No.1739/42, total

land 11 Kanal 11 marla share-2 Kanal 17 Marla in village sankroad, Distt. Bhiwani for total consideration of Rs. 3,25,00,000/-.

It is further submitted by the Appellants that the failure to file financial statements and annual returns with the Registrar of Companies, NCT of

Delhi and Haryana was due to inadvertence on part of the management and due to lack of professional guidance and as such there was no wilful or

mala-fide motive behind non-filing of the Financial Statements and Annual returns.

The Registrar of Companies has stated that it has no objection if the name of the Company is restored on proving by the Company that it was

carrying on business or was in operation and the Company be also directed to file financial statements up to date with appropriate filing and additional

fees.

The Income Tax Department has not submitted any report inspite of giving various opportunities.

The grounds contemplated under section 252 of Companies Act, 2013, namely, that of the company carrying on business or was in operation at the

time of striking off its name, and where it appears “just†to the adjudicating authority that the name of the company is to be restored to the

Register of Companies. It is also seen from the perusal of the provisions under Section 252(3), that if Tribunal is of the opinion it is “just†that the

name of the company is to be restored to the register of companies maintained by Registrar of Companies, such orders can be passed for the name of

the company to be so restored. For reference, the provisions of Section 252(3) of the Companies Act, 2013 is extracted hereunder:

252(3) “If a company, or any member or creditor or workman thereof feels aggrieved by the company having its name struck off from the

register of companies, the Tribunal on an application made by the company, member, creditor or workman before the expiry of twenty years

from the publication in the Official Gazette of the notice under sub-section (5) of section 248 may, if satisfied that the company was, at the

time of its name being struck off, carrying on business or in operation or otherwise it is just that the name of the company be restored to the

register of companies, order the name of the company to be restored to the register of companies, and the Tribunal may, by the order, give

such other directions and make such provisions as deemed 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 from the register of companies.

Further, relying on the following Judgement, namely, order of Honourable High Court of Delhi in Company Petition No. 174/2013 dated

02.12.2013, which in brief reflects the following:

“The Court is of opinion that it is “otherwise just†that the company be restored to the register in case of an immovable property,

restoration can be ordered.â€​

where immovable property rights are involved and in the instant case also the facts vouch for the similar decision, it is only proper that the name of the

company be restored to the Register of Companies.

Hence, there exists a “justâ€​ ground for the restoration of the name of the appellant company in the Register of Registrar of Companies.

The Section 252(3) contemplates that one of the three conditions are required to be satisfied before exercising jurisdiction to restore company to its

original name on the register of the Registrar of Companies namely:

i. That the company at the time of its name was struck off was carrying on business.

ii. Or it was in operation

iii. Or it is otherwise just that the name of the company be restored on the register.

The Appellant has submitted evidence mainly of the possession of immovable property by the company and further efforts of investment to be

made in immovable property by the company and that it has been in operation during striking off and therefore could not be termed as defunct

company. Thus, taking into consideration the provisions of Section 252(3) of the Companies Act, 2013 which vests this Tribunal with a discretion

where the Company whose name has been struck off and such Company is able to demonstrate that there is a running business as on the date when

the name was struck off and also keeping in consideration that it is just to do so can restore the name of the Company in the Register and in the

interest of all stakeholders including the Appellant itself who seeks restoration of the name of the Company in the register maintained by Registrar of

Companies, the company deserved to be restored.

Accordingly, this appeal is allowed. The Public Notice of Registrar of Companies striking the name of the company is set aside. The restoration of

the company’s name to the Register of 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

leviable by the respondent for the late filing of statutory returns, and also subject to payment of cost of Rs. 25,000/- to be paid to Prime Minister’s

Relief Fund. The name of the Appellant Company shall then, as a consequence, stand restored to the Register of the Registrar of Companies, as if the

name of the company had not been struck off in accordance with Section 248(1) of the Companies Act, 2013.

The appeal is disposed of accordingly.

Let the copy of the order be served to the parties.