Dashmesh Impex Private Limited vs Registrar of Companies

Justice Anant Bijay Singh;

The present Appeal under Section 421(1) of the Companies Act, 2013, has been filed by the Appellant being aggrieved and dissatisfied by the order dated 10.08.2021 passed by the National Company Law Tribunal (Court-V, New Delhi) in Appeal 171/252/ND/2020 whereby and whereunder appeal filed by the Directors of the Company for restoration of the name of the Company in the Register maintained by the Registrar of Companies (RoC) was dismissed by the Tribunal.

The facts giving rise to this Appeal are as follows:

i) The  Appellant  Company  was  incorporated  under  the  Companies  Act, 1956 on 14.07.2006 as a private company limited by shares and the same is registered with the office of Registrar of Companies, NCT of Delhi & Haryana. The Company is carrying on business of development of software and main objects of the Company to carry on the business of manufacturing trading import export of garments fabrics and related items and to carry on the business of embroidery & designing on garments, fabrics and related items etc.

ii) The  Appellant  Company  is  a  closely  held  company  and  there  are shareholders and 6 directors in the Appellant Company which are hereunder:

List of Directors

Sr.

No.

Name of Directors

Date                 of

appointment

DIN

1

Kamal Kishore

09/03/2017

00408530

2

Bhagwant Singh Kalra

14/07/2006

00726850

3

Gunwanti Jain

07/07/2010

00764239

4

Lokesh Tayal

09/03/2017

01071754

5

Ashok Mishri Mal Jain

07/07/2010

01133869

6

Satwant Kalra

14/07/2006

01331672

List of Shareholders

Sr. No

Name of Shareholders

No.     of     equity shares    of    10/- each.

Percentage       of shareholding

1

Bhagwant Singh Kalra

5,000

50%

2

Satwant Kalra

5,000

50%

Total

10,000

100%

iii) The Authorized Share Capital of the Appellant Company is Rs. 1,00,000/- Consist of 10,000 Equity Shares of Rs. 10/- which issued, Subscribed & Paid up share capital of the struck off Company is Rs. 1,00,000/- Consist of 10,000 Equity Share of Rs. 10/- each. The Appellant Company has filed its financial statements with the Respondent till the year ended on 31.03.2009. The Appellant Company commenced its business and operations since the date of incorporation of the Company and the Company is continuing to carry out its business and operation till date. The Company is regularly convening its annual general meetings and approving and adopting the audited balance sheets and complying with other requirements of the Companies Act, 2013 and rules made thereunder.

iv) Mr. Kamal Kishore & Mr. Lokesh Tyal has been appointed as the directors in the above said company in the year 2017 for managing the affairs of the company. The appointment of the above said director was duly approved by the Respondent. The company has taken a land from Rajasthan State Industrial Development and Investment Corporation Limited ("the Corporation") for the purpose of carrying on business and operation. The said Corporation vide letter dated 20.11.2017 has admitted that the appellant company has started the production on the above said plot as on 21.12.2013 and asking for the late starting fees. The company is having Assets and Liabilities. The copy of balance sheet were duly laid and adopted in the respective Annual General Meeting of the Company under relevant provisions of Act. The company is having tangible fixed assets that comprises of land amounting to Rs. 12,05,031.55. The directors of the company regularly paying the dues of the Corporation and has paid his dues of Rs. 3,65,923/- on 12.01.2021 to the Corporation. The company has also filed income tax returns regularly.

v) Further case is that the Respondent Registrar of Companies without giving any prior notice to the Appellant Company ordered the publication of information regarding the removal of name of the Appellant Company from the register of Companies w.e.f. 07th June 2017 in the Official Gazette dated 30.06.2017. Whereas, the name of the Company was still retained in the records by the office of Respondent even after publication of the said notification and the same is evident from the fact that the Appellant Company had appointed the two directors after filing of the relevant E-form DIR-12 and the same was approved by the Respondent.

vi) Further case is that being aggrieved by the notice of the Respondent of striking off, the Appellant Company approached the Tribunal under Section 252 of the Companies Act, 2013 for revival of the Appellant Company, wherein the Respondent filed its reply in the matter and did not object to revival of the Appellant Company, thereafter, hearing both the parties, the Tribunal passed the impugned order.

The Ld. Counsel for the Appellant during the course of argument and in his memo of Appeal submitted that while passing the impugned order the Tribunal failed to consider that the Respondent-RoC has not raised any ground whatsoever for rejecting the appeal for revival of the Appellant Company and has simply shifted the burden on the Appellant Company to prove that the Appellant Company was carrying on business and operations. Therefore, in the absence of any objection from the Respondent there were no grounds with the Tribunal to reject the Appeal of the Appellant Company. The Tribunal also failed to consider that the company has property in their name which is duly reflected in the balance sheet also, the income tax returns filed up to 2009-2010 which shows that the Appellant Company was carrying on its operations before the date of striking off the name of the Company i.e. before 30.06.2017.

On the other hand, the Respondent during the course of argument and in his reply submitted that the Appellant Company has filed its financial statements till financial year 31.03.2009 due to which the Respondent had reasonable cause to believe that the Appellant Company was not in operation and in terms of provision of Section 248(1), notice was sent to the Appellant Company and also to its directors by invoking the provisions of Section 20 of the Companies Act, 2013. The appellant company has been issued STK-1 in March, 2017. Further, in terms of Section 248(4) of the Act, public notice in form STK-5 were issued to the appellant company by making publication in official gazette on 28.04.2017 and these notices have also been placed on the website of Ministry of Corporate Affairs. In pursuant to Sub-section (5) of Section 248 of the Companies Act, 2013 and Rule 9 of the Companies (Removal of Names of Companies from the Register of Companies) Rules, 2016, after expiry of time as mentioned in notice published/sent and non-receipt of any objection from the company/directions, Dissolution in from STK-7 having effect from 30.06.2017 was published on the website of Ministry of Corporate Affairs on 08.07.2017.

After hearing the parties, going through the pleadings made on behalf of the parties and in view of the fact that the financial statements 2016-2017, 2017-2018, 2018-2019, 2019-2020 and Income Tax Return of the Appellant Company shows that the Appellant Company is having substantial movable as well as immovable assets. Therefore, it cannot be said that the Appellant Company is not carrying on any business or operations. Hence, we are of the view that the order passed by the NCLT, New Delhi as well as RoC, NCT Delhi & Haryana is not sustainable in law.

In view of the aforenoted, we set aside the impugned order dated 10.08.2021 passed by the National Company Law Tribunal (Court-V, New Delhi) in Appeal 171/252/ND/2020. The name of the Appellant Company be restored to the Register of Companies subject to the following compliances.

i) Appellant shall pay costs of Rs. 1,00,000/- (Rupees One Lakh) to the Registrar of Companies, NCT Delhi & Haryana within 30 days.

ii) After restoration of the Company's name in the Register maintained by the RoC, the Company shall file all their Annual Returns and Balances Sheets. The Company shall also pay requisite charges/fee as well as late fee/charges as applicable.

iii) Inspite of present orders, RoC will be free to take any other steps punitive or otherwise under the Companies Act, 2013 for non-filing/late filing of statutory returns/documents against the Company and Directors.

The instant Appeal is allowed to the above extent.

Registry  to  upload  the  Judgment  on  the  website  of  this  Appellate Tribunal and send the copy of this Judgment to the National Company Law Tribunal (Court-V, New Delhi), forthwith.