CBR BIO Research & Development Privatelimited vs Registrar Of Companies

Mahendra Khandelwal, Hon’ble Member (Judicial)

This is an appeal filed under section 252(1) of the Companies Act read with Rule 87A of the National Company Law Tribunal (Amendment) Rules, 2017 by the Applicant CBR Bio Research & Development Private Limited & Ors. in relation to an order of striking off the name of the Company [CIN: U52100DL2021PTC377257] passed by the Respondent RoC with effect from 17.06.2022 under the provisions of Section 248(1)(c) of the Companies Act, 2013 read with Rule 9 of the Companies (Removal of Names of Companies from the Register of Companies) Rules, 2016. Learned counsel for the Applicant represents that the Applicant Company was incorporated under the provisions of Companies Act, 2013 on 19.02.2021 and has its registered office at H.No 24, AIIMS Apartment, Mayur Kunj, Mayur Vihar New Delhi-110096, India.

Upon  notice  to  the  Registrar  of  Companies  (“RoC”),  and  Income  Tax Department, the RoC has filed its report dated 25.05.2023. The RoC in its reply has stated that if the Tribunal considers the application for restoration of the name of the Company, it may please issue directions to the petitioners to file all the pending Annual Returns and Balance Sheets of the Company with the Registrar of Companies and award costs in favour of the RoC for failure in filing of Statutory Documents by the Applicant Company. Income Tax Department was proceeded ex-parte owing to no representations by them vide order dated 03.08.2023 of this Court.

That as per Memorandum of Association of the struck off company, the main objects of the company are :-

“To carry on the business of retail pharmaceutical items and ancillary services”

That as per available records on MCA 21 portal, the last Directors of the struck off Company were as follows:

A. Chandra Bhan Singh, R/O 171 Purab Tolabalrampur, 271201, Uttar Pradesh, India.

B. Rekha Singh, R/O 171 Purab Tolabalrampur, 271201, Uttar Pradesh, India.

The Authorized Capital of the Company is Rs. 1,00,000/-. The Paid-up Capital of the company was nil as per the Master Data copy enclosed in the report of the Registrar as Annexure-I.

That Respondent No 1 (RoC) issued the notice in the form of STK-1 on 05.07.2022 to the company and its directors via Book Now Pay Later Service of the Department of Post vide ED107999261IN and intimated about the aforesaid defaults, providing them a fair opportunity to respond. Subsequently RoC also issued public notice for the same in the form of STK-5 dated 28.09.2022 published on website of Ministry of Corporate Affairs.

Thereafter, the name of the company was struck off as per the provision of Section 248(1)(c) of the Companies Act, 2013 read with Rule 9 of the Companies (Removal of Names of Companies from the Register of Companies) Rules, 2016 vide Notice in the form of STK-7 dated 10.01.2023 published in Official Gazette.

The Applicant Company submitted that the Company is in full operations and is carrying on the business of trading of pharmaceutical items since its operation. The company contended that it has a GST Number and regularly filing GST Returns with Statutory Authorities and also had bank account in Axis Bank conducting regular transactions.

It is submitted that under the provisions of The Companies Act, 2013, the company was required to obtain the certificate of Commencement of Business by way of filing the E-Form 20A. It is due to reason of non-filing of E-Form 20A that the Respondent RoC struck off the name of Applicant Company from Register of Companies. The applicant company prayed that this omission occurred inadvertently and was not a deliberate fault hence the company name must be restored and they would instantly rectify said omission and file E-Form 20A with the RoC.

The Respondent RoC submits that the applicant company failed to file a declaration within a period of 180 days of the date of incorporation of the company in E-Form INC 20A with the registrar that every subscriber to the memorandum has paid the value of the shares agreed to be taken by the petitioner company. Hence, the RoC submits that the action of striking off the present company was legal and justified as the applicant  company  was  not  carrying  operations  for  a  period  of  two immediately preceding financial years(as indicated by non-filing of financial statements of Company for 2 or more years) before its name was struck off.

We  have  considered  the  plea  of  the  Applicant  and  the representations of RoC. It is evident from the plea of the Applicant that it admits the default. However, the Applicant is seeking restoration of its name in the register as maintained by RoC relying on the ground that due to inadvertent reasons, it failed to file E-Form 20A and is willing to rectify the omission instantly with abundant precaution  as  to  all  statutory  compliances  in  the  future.  Having considered submissions of all the parties, we are of the view that it is just and equitable that the name of the Company should be restored on the register of RoC as maintained by the Respondent RoC.

In Purushottamdass and another (Bulakidas Mohta Company Private Limited V. Registrar of Companies, Maharashtra & Others.), The Hon'ble Bombay High Court observed as follows: -

"The objects of Section 560(6) of the Companies Act, is to give a chance to the company, its members and creditors to revive the company which has been struck off by the Registrar of Companies, within a period of 20 years, and to give them an opportunity of carrying on the business only after the company judge is satisfied that such restoration is necessary in the interests of justice.

In M.A. Rahim & another V. Sayri Bai, the Division Bench of Hon'ble Madras High court, reported in MANU/TN/0218/1973, has held that the word just' connotes reasonableness and something confirming to 'Rectitude' and 'Justice ', something Equitable and Fair.

Accordingly, the appeal is allowed, subject to payment of costs of Rs. 50,000/- to the Registrar of Companies. The restoration of the Appellant Company’s name in the Register will be subject to their filing all outstanding documents for the defaulting years as required by law and completion of all formalities, including payment of any late fee or other charges which are leviable by the Respondent RoC for the late filing of statutory returns. The name of the Appellant Company shall then stand restored- in the Register of the RoC, as if the name of the company had not been struck off.

The direction for freezing the bank account(s) of the Appellant Company, if on this ground, shall consequently be also set aside immediately to enable the company to carry out its business operation. Compliance of this order for restoration shall be made by the Respondent with all its consequential effects within one week of compliance by the Appellant.

The appeal is allowed and disposed of accordingly. Let the copy of the order be served to the parties.