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Judgment
This appeal is filed by the company, M/s Dee Rock Builders Private Limited (for brevity the 'Company), through its Promoters -Directors Mr. Anil
Dixit and Mr. Mahendra Dutt Kaushik under Section 252(1) of the Companies Act, 2013 (for brevity 'the Act') against the order of striking off the
name of the company 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 by Registrar of Companies,
the respondent herein.
The company is incorporated as a Private Limited Company under the provision of Companies Act, 1956 with the Registrar of Companies, NCT of
Delhi and Haryana on 03.10.2008 having CIN U70101DL2008PTC183922.
The company is having registered office at 63, Manaysthali Apartment, G-H-S, Vasundhra Enclave, Delhi-110096.
Authorized capital of the Company is Rs. 10,00,000/- divided into 1,00,000 equity shares of Rs. 10/- each and issued, subscribed and paid up capital
of the company Rs.10,00,000/- fully subscribed divided into divided into 1,00,000 Equity Shares of Rs.10/- each.
The main objects of the company are:
i. To purchase, sell, own, develop, improve, let, take on lease, exchange, assign, hire or otherwise acquire and/or disposed off or let out or give on rent
lands of any tenure or interest therein and to develop, erect, construct and furnish industrial, Residential, Commercial, Social, Rural and/or Urban
Townships or Estates and to rebuild, enlarge, alter and improve existing str5uctures and works thereon and to act as town planners and civil contracts,
and to carry on the business of Real Estate Developers and colonizers and for such purpose to prepare estimates, designs, plans and specifications.
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 since
the financial year ending on 31.03.2012, 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 and hence not given
any opportunity of being heard prior to striking-off the name of the company.
The appellants further submit that no notice under section 248(1) of the Act in the form of STK-1 was served on Company or any of the directors
or any person on their behalf, before striking of the name of the company.
However, without going into the controversy of the latches in following the due procedure of law by Registrar of Companies before the final act of
striking off the name of the company from the register of companies maintained by Registrar of Companies for non-filing of statutory documents by
company for the relevant period, by Registrar of Companies through publication of notice of on 30.06.2017, the appellant has preferred to prove with
documents and records that the company was in operation and doing business during the period of striking off the name of the company as a better
remedy.
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 Bank Statement of the company, issued by National Urban Co-operative Bank Limited, Mayur Vihar as on 31.03.2018, reflecting
various transactions done by the company during the period of striking off the name of the company, having closing balance of Rs. 75,424.80/-.
ii. The copies of financial statements of the company for the financial years ending on 31.03.2013 up to 31.03.2017. The turnover as per last audited
Profit and loss Account as on 31.03.2017 is Rs 675,650/- and corresponding profit for the same period is Rs. 8,945.
iii. The Balance Sheet as on 31.03.2017 reflects fixed assets in the form of Land and Building of total value amounting to Rs. 36,02,160/-
iv. The company incurred employee benefit expense of Rs.1,68,000/- for the financial year 2016-17.
v. The copies of Income Tax Returns filed for the assessment years 2013-14 to 2017-18. The tax paid by the company for AN. 2017-18 is Rs. 4,000/-
vi. The copy of Rent Agreement dated 01.04.2015, of the company and the copies of rent receipt of Rs. 2500/- paid till 01.03.2017
vii. The copies of invoices paid in cash towards service provided by the company from 01.04.2016 to 30.03.2017
viii. The copies of affidavit of eight employees stating their salary and period of employment.
It is further submitted by the Appellant 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 submitted in its report that there is no outstanding demand against the Assesse and has no objection if the
company is considered for revival.
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 Appellants have submitted sufficient evidence that it has been in operation since incorporation 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.