AI Structured Summary
Not yet generated for this judgment
Judgment
The appellant company CM Lubes India Limited, (for brevity ""the appellants"")has filed this appeal under section 252 of the Companies Act, 2013
(hereinafter called as the Act') through and along with its Directors Mr. SonuChugh, Mr. Anil Chugh, Mrs. Usha Rani Chugh against the order of the
Registrar of Companies (ROC), NCT of Delhi and Haryana dated 07.06.2017. The order mentioning the name of the Appellant at item No. 3980 was
duly published in Official Gazette on 30.06.2017. The name of the appellant company has been struck off from the Register of Companies under
section 248(5) of the Act read with Rule 7 and Rule 9 of Companies (Removal of Name of the Companies from the Register of the Companies)
Rules, 2016.
It is stated that the appellant company is a public limited company, having its registered office at 593, Rishi Nagar, Rani Bagh, New Delhi-110034
was incorporated on December 13, 2010 with the Registrar of Companies, NCT of Delhi and Haryana under the Companies Act, 1956 vide CIN No.
U23200D1,2010PLC211345.
The authorized share capital of the company is Rs.30,00,000/- divided into 300,000 equity shares of Rs.10/-each and the issued, subscribed and paid
up capital of the company is Rs.30,00,000/-.
The main object of the appellant company is:
i). to carry on the business as manufacturer, trading, buying, selling, dealingin various types of petroleum products including lubricating oil and greases.
ii). to carry on in India or elsewhere the business to produce, manufacture, treat, mix, manipulate, refine, extract, reuse, process, transport, prepare,
finish, clean, buy, sell, import, export, pack, repack, wholesale retail, distribute and to act as agent, broker, vendor, consultant, consignor, contractor, job
worker, collaborator or otherwise to deal in all kinds and classes of lubricating devices, agent, oils, material, compounds, chemicals, greases, pastes,
compositions and matters whether used in industries, households, business, defence, aviation, transport, communication, power or for any other
purposes whatsoever and to do all incidental acts and things necessary for the attainment of above objects.
iii). To do all works which are incidental and ancillary, such as manufacturing, trading, buying, selling and dealing in various types of petroleum
products including lubricating oil & greases.
The Appellants averthat the Appellants received the notice dated March 2, 2017 from the Respondent u/s 248(1) and (2) of the Companies Act,
2013 stating that the company is not carrying on any business or operation for a period of two immediately preceding financial year and has not made
an application within such period for obtaining the status of a dormant company u/s 455 of the Act.
It is further stated that as the Appellants failed to reply the Respondent's notice which was entrusted for replyto a firm of Chartered Accountants.
Hence the name of the Company was stuck off by the order dated 30.06.2017.
It is further submitted that the business of the Company was interrupted for a short while when the officials of the Central Excise authority on
September 05.06.2014 conducted a raid in the factory/office of the company and had confiscated all the documents of the Company, viz. purchase
and sale invoices, statutory records, books of the accounts, sales tax, files, electricity bills, computers, sale invoices, etc. along with whatever inventory
of raw materials, samples or finished goods was available in the said premises. Due to the non-availability of the statutory records as the same being in
the custody of Central Exercise Authority from June 2014 to August 2016 till the order dated August 8, 2016 of the Central Excise Authority releasing
the confiscated documents and material from the premises. Hence, the Appellant Company failed to file the annual returns for financial years 2013-14
and 2014-15 with the Respondent RoC.
The appellants further state that the delay in filing of the documents is due to non-availability of documents which is justified by the appellants
before this Hon'ble Tribunal. It is further stated that the said non-compliance is not of such a nature as to prejudice the interest of the
creditors/shareholders and/or public at large and it is just and equitable that the revival and restoration of the name of the company be allowed by this
Tribunal.
Appellants further aver that they preferred a Writ petition W.P.(C) 11682/2017 & CM Nos. 47433-47434/2017 before the Hon'ble High Court of
Delhi challenging their., disqualification as Directors under the provisions of Section 164(2)(a) of the Companies Act, 2013. The petitioner stated
before the Hon'ble High Court of Delhi that the petitioners seek to avail of the Condonation of Delay Scheme, 2018, however is unable to do so since
the company name is struck off form the Register of Companies. The Honble High Court of Delhi passed an order on December 22, 2017 that, inter
alia, in the event that the Appellants herein file an appeal u/s 252 of the Act before the Hon'ble NCLT within four weeks from the date of the order to
get the name of the Appellant Company restored, the Appellant Directors herein will be entitled to avail Condonation of Delay Scheme- 2018 as
issued by the Ministry of Corporate Affairs vide its General Circular No. 16/2017 dated December 29, 2017, provided the name of the company is
restored in the Register of Companies. The Honble High Court also directed the appeal filed before NCLT is to be disposed off as expeditiously as
possible given that the CODS- 2018 is only available till 31.03.2018. Notwithstanding, the above, it is clarified that in the event the NCLT is unable to
dispose of the appeal within the time as requested for the reasons that are not attributable to the petitioners, the respondents shall ensure that the
Scheme under CODS-2018 is extended in respect of the petitioners would not be deprived of the opportunity to avail the CODS-2018 only on account
of pendency of the appeal before NCLT.
The company is operating within the four corners of law and has no mala fide intention for non-filing of the annual returns or other statutory
returns.
It is further submitted by the Appellants that no investigation proceedings have ever been initiated against the Company and / or of its directors
under any applicable provisions of The Companies Act, 2013.
The appellants and its management remained involved in carrying out day to day business preparing its annual accounts and also holding its board
meetings, general meetings of its shareholders and has maintained proper statutory records as required as are required by law. Although the company
failed to file the annual returns and financial statements for financial year 2013-14, 2014-15 with ROC due to justified reasons. All the assets of the
Company remained intact and it never became defunct nor did a situation arise for winding up of its business. It is further submitted that it has held
and convened its Annual General Meeting regularly. Therefore, it cannot be concluded that the appellant company is a non-functional or a defunct
company.
It is further submitted that all the necessary documents including the Balance Sheets, Audit Report and Profit and Loss Accounts from year 2013-
14, 2014-15 are claimed to be ready with the appellant company for submission before the respondent ROC.
The copy of the account passbook of the company which has been placed on record, reflects that the business of the appellate company as a
going concern, running in normal course having substantial balance amount of Rs.1,87,04,241.04 in the year 2017.
According to the ROC the object of Section 252(3) of the Companies Act is to give chance to the company and its member to revive the company
which has been struck off by the Registrar of Companies and that such restoration be allowed on the rolls of ROC in the interest of justice if the
appellant is able to prove that at the time of striking of its name it was in operation.
The appellantshave also submitted that in the event of revival and restoration of the name of the company in the Register maintained by the ROC
respondent, the appellant company shall file all outstanding statutory documents for the period 2013-2014 to 2016-2017 and the filing fees along with
the additional fees, as applicable on the date of actual filing along with a certified copy of order of this Hon'ble Tribunal for restoration of the name of
the company.
As per the records and claims of the appellants as narrated above it is proved beyond doubt that the company was carrying on the business and it
was in operation. Hence, the objections raised by ROC is satisfied. The Income Tax Department has confirmed that the Income-tax returns have
been regularly filed by the company till year 2016-2017 and there are no demands pending against the company.
In view of the above facts the appeal is allowed. The notification published in the Official Gazette of India dated 27.06.2017 and the order dated
30.06.2017 in so far as the name of the company shown at Serial No. 3980 and CIN No. U23200DL2010PLC211345 is hereby set aside. The
restoration of the company's name to the Register will however be subject to its filing all the outstanding statutory documents as required under law
and completion of all formalities, including payment of any late fee or any other charges or penalties which are leviable by the respondent for late filing
of statutory returns and also payment of cost of Rs. 25,000/- to be paid to the Prime Minister's Relief Fund. The name of the company shall then, as a
consequence, stands restored in the register maintained by the Registrar of Companies, as if the name of the company had not been ever struck off.
The appeal is disposed off.