Cosmere Technologies Private Limited vs Registrar Of Companies

Ashok Kumar Borah, J

This is a Company Appeal No. CA/19/KOB/2020 filed Under Section 252(3) of the Companies Act, 2013, (hereinafter called as the 'Act'), filed by COSMERE TECHNOLOGIES PRIVATE LIMITED. The Corporate Identification Number (CIN) of the Company is U72200KL2014PTC036407, having its Registered Office as stated in the Incorporation Certificate annexed to the appeal is at Sabari Bhavan, Near Siva Temple, Vithura P.O, Trivandrum Kerala 695 551 (in the appeal the registered office address is shown as No. A-7, 1st floor, Gayatri Building, Technopark, Kariavattom, Thiruvananthapuram, Kerala-695581) seeking a direction to the Registrar of Companies, Kochi (the RoC) to restore the name of the Company in the Register of Companies, maintained by the Registrar of Companies, Kochi, for the State of Kerala. The appellant Company in their appeal stated that the Company inter alia, was engaged to 1) To provide services of Website Designing Development, Software Development, Mobile Application Development, Web Hosting, Internet Marketing, E-Commerce Solutions and to provide technical support of all kinds. 2) To develop, design, customize, host, optimize, and manage products related to Information Technology and to provide consultancy in relation to that worldwide. 3) To develop and provide end to end services for software, website domain, bulk mail, lead management and internet marketing. 4) To establish, maintain, conduct, provide, procure, or make available; services of every kind including internet services, E-mail services, Marketing services, Managing Consultancy Services, Communication and other Technological services.

The learned PCS appearing for the Appellants submitted that since the Finance-in-charge of the company was not in knowledge of the statutory proceedings he has not advised the directors properly, the Company defaulted in filing the Annual Accounts and Returns with the Registrar of Companies (RoC), Ernakulam, Kerala, as required under the Act for the Financial Years 2016-17 and 2017-18. Hence, the respondent herein struck off the name of the company from the Register of Companies due to default in statutory compliances.

The appellant further undertakes to file all pending returns for the Financial Years 2016-17, 2017-18, and 2018-19 along with the filing fees and additional fees as applicable on the date of actual filing on receipt of Restoration Order and prayed for a direction to ROC to restore the name of the Company in the Register of Companies, maintained by the RoC, and allow the appellant to file the pending returns.

The RoC, who is respondent herein, has filed a Report stating that the Ministry of Corporate affairs vide communication dated 25.06.2019 had instructed all Regional Directors and Registrars of Companies to take strike off action against companies which have failed to file Financial Statements or Annual Returns as per Chapter XVIII of the Companies Act, 2013 and have not filed application under Section 455 (1) of the Companies Act, 2013 for making them as 'Dormant'.

It is further submitted by the RoC, Kerala, in the instant case, on verification of the documents of the subject company it was found that the company has not filed its Balance Sheet and Annual Return since 2016. It had been defaulting in filing its Financial Statements for the Financial Years ending 31.03.2017 and 31.03.2018 and Annual Return for 2017 and 2018. RoC submitted that the subject company has violated the provisions of Sections 92/137 of the Companies Act, 2013. RoC also submitted that as per provisions of Section 248 read with relevant rules, notice had been issued to the company and its directors on 09.07.2019 and due process has been meticulously followed for strike of action of the Company.

Circumstances being above, the RoC submitted that the action of striking off the name of the Company was triggered due to negligence and lack of due diligence on the part of the Directors of the Company. Therefore, the action of strike off of the name of company is fully substantiated within the authority under the provisions of Section 248 of the Act and deserve the protection of the Hon'ble Tribunal.

When the CA came up for consideration on 27.02.2020, the Bench directed the appellant to state as to when the company was delisted and also when the bank account was frozen. The learned counsel has filed a rejoinder on 29.06.2020 in which it has been stated that the company has produced the information sought by this Tribunal. On going through the same, it is seen that the appellant company was dissolved on 30.10.2019 and the bank account was frozen on 06.03.2020.

We have heard the arguments advanced by the PCS for the appellant through video conferencing and have gone through the report dated 04.03.2020 submitted by Registrar of Companies in the instant appeal. Having satisfied with the reasons as mentioned in the appeal, the Tribunal is of the opinion that it would be just and proper to order restoration of the name of the Company in the Register of Companies. Hence this Tribunal pass the following order:

i. The Company is directed to file all the statutory document(s) along with prescribed fees/additional fee/fine as decided by Registrar of Companies within 30 days from the date on which its name is restored on the Register of Companies by the Registrar of Companies. The appellant is directed to submit a Declaration from the Directors regarding the deposits made during the demonetization period with the Registrar of Companies.

ii If the Directors are disqualified, then the DIN are not allowed to be reactivated as they are disqualified. However, Registrar of Companies, Kochi is directed to allow for filing of the Annual Returns and Financial Statements by the company to restore the name of the company.

iii. The appellant is directed to pay the costs of ? 25,000/- (Rupees Twenty Five Thousand only) to the accounts of Central Government in favour of the Pay & Accounts Officer, Ministry of Corporate Affairs, Southern Region, Chennai and proof of payment to be handed over to Registrar of Companies, Kerala within three weeks of receipt of this order, while submitting the documents, failing which the order will lapse.

iv. The Company's representative, who has filed the Company appeal, is directed to personally ensure compliance of this order.

v. On such delivery and after duly complying with the above directions, the Registrar of Companies, Kochi is directed to, on his office name and seal, publish the order in the official gazette.

vi. This order is confined to the violations, which ultimately led to the impugned action of striking off of the Company, and it will not come in the way of Registrar of Companies to take appropriate action(s) in accordance with law, for any other violations/offences, if any, committed by the Company prior or during the striking off period of the Company.

Accordingly, the Company Appeal No. CA/19/KOB/2020 stands disposed of.