Dev Versha Jatro-Valley Private Limited vs Registrar Of Companies

Mahendra Khandelwal, Member (Judicial)

The present appeal has been filed by Appellant Company under Section 252(3) of the Companies Act, 2013 for restoration of name of the company, which was struck off by the Registrar of Companies, NCT of Delhi and Haryana (Respondent) vide Public Notice ROC-DEL/248(5)/STK-7/2879 dated 30.06.2017.

Brief facts of the case, as mentioned in the instant company appeal, which are relevant to the issue in question, are as follows: -

a) The Appellant Company was incorporated on 25.06.2006 as a private limited company having CIN: U40107DL2006PTC150204 and has its registered office at E- 1/161, Jaitpur Extension, Ismailpur, Badarpur Delhi- 110044. The instant appeal is filed by the Shareholders of the Appellant Company namely Kusum Gupta, Anagh Jain and Shourya Jindal, holding 4000, 2000 and 4000 Equity Shares respectively.

b) The Registrar of Companies had not sent the notices to the company as well as its directors. The directors had the right to receive individual notices, but the Registrar of Companies, Delhi have sent notices to the company only and have deemed that the same shall also be served on the directors.

c) The company was preparing all its returns etc. and was relying on the professional to file the same. It was a shock to the company and its directors when it came to know recently that its name have been struck off from the Register of Members by the Registrar of Companies i.e. respondent.

d) The company is a going concern and the Balance Sheets and Profit & Loss Account for the years ending 2017-2018, 2018-2019, 2019-2020, 2020-2021 and 2021-2022 is placed on record as Annexure 4,5,6,7 and 8. The company had been regular in filing its returns with the Income Tax Department and the copies of Returns for the Assessment Years filed by it for the years 2016-2017, 2017-2018 and 2018-2019 and is placed on record as Annexure-9. Further, the Appellant Company undertakes to file the balance due documents i.e. Annual Returns and Financial Reports with the MCA along with additional fee if any, on its revival.

e) That the present Appeal is for Restoration of the name of the Company in the Register of Companies maintained by the Registrar of Companies, NCT of Delhi & Haryana.

The Registrar of Companies (ROC) has filed its report and the rejoinder to the report has been filed by the Appellant Company. Further, Ld. Counsel on behalf of the RoC submitted before this Tribunal, that subject to filing of necessary returns by the company, an appropriate order may be pass by the Tribunal, as recorded in order dated 13.12.2023.

The Income Tax Department have not filed its report. However, in compliance of the order dated 09.08.2023, the Appellant Company had filed an affidavit cum undertaking dated 11.09.2023 regarding the dues of the income tax, undertaking to pay the dues of the company towards Income Tax Department, if any, subject to the rights of the company of appeal, revision or review.

Heard the Ld. Counsel for the Appellant as well as Ld. Counsel for RoC. Record has been thoroughly perused. We observe that the Appellant Company in order to sustain his case, has placed reliance on the following documents: -

a) Copy of the statement of Bank Accounts of the Company.

b) Copies of the Balance Sheets for FY 2017-2018, 2018-2019, 2019-2020, 2020-2021 and 2021-2022.

c) Copy of Income Tax Returns of the Company for FY 2016-2017, 2017-2018 and 2018-2019

d) Affidavit by Shareholder undertaking to pay Income Tax Dues.

On the perusal of the documents on record, it is observed that the Company was operative and carrying on its business operations effectively in the previous financial years.

At this juncture, it will be advantageous to examine the requirement of Section 252(3) of the Companies Act, 2013 insofar as grant of relief to the appellant is concerned. The Section 252 (3) of the Act is reproduced below for better appreciation:

“252. Appeal to Tribunal. –

(1) …………………………..

(2) …………………………..

(3) If a company, or any member or creditor or workmen thereof feels aggrieved by the company having its name struck off from the register of companies, the Tribunal on an application made by the company, member, creditor or workmen before the expiry of twenty years from the publication in the Official Gazette of the notice under subsection (5) of section 248 may, if satisfied that the company was, at the time of its name being struck off, carrying on business or in operation or otherwise it is just that the name of the company be restored to the register of companies, order the name of the company to be restored to the register of companies, and the Tribunal may, by the order, give such other directions and make such provisions as deemed just for placing the company and all other persons in the same position as nearly as may be as if the name of the company had not been struck off from the register of companies.”

In connection with the non-filing of statutory records, it is pertinent to refer to the findings of Hon’ble High Court of Delhi in the matter of Mace Platronics Pvt Ltd Vs ROC, reported in (2010) 104 SCL 277 (Del), wherein it was held that:

“When the name of the company was struck off after following the prescribed procedure for non-filing of statutory records, even though the contentions of the company that the officials entrusted with responsibility of filing documents had failed to do so cannot be accepted yet since the company was a running company and the application had been filed in time, the court had power to restore the name of the company.”

Hence, upon considering the facts and circumstances of this present petition, it would be “just and proper” to order restoration of the name of the Company in the Register of Companies maintained by the ROC.

Accordingly, this Petition is allowed. The restoration of the Company’s name to the Register of Companies maintained by the ROC, is hereby ordered, subject to the following directions namely-

a) The restoration of the Appellant Company’s name i.e. Dev Versha Jatro-Valley Private Limited is subject to the payment of cost of Rs. 50,000/- (Rupees Fifty Thousand Only) to be paid to the Registrar of Companies, NCT of Delhi and Haryana. 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 has not been struck off in accordance with Section 248(1) of the Companies Act, 2013.

b) The Registrar of Companies, NCT of Delhi & Haryana (Respondent) is directed to restore the original status of the Appellant company as if the name of the company has not been struck off from the Registrar of Companies with resultant and consequential actions like changing status of the company from ‘struck off’ to “Active”.

c) The Appellant Company is directed to file all pending statutory document(s) including Annual Accounts and Annual Returns in default along with prescribed fee/additional fee/fine as prescribed under the Companies Act, 2013 within 45 days from the date on which its name is restored on the Register of Companies by the ROC, NCT of Delhi and Haryana (Respondent). Consequently, thereupon the bank account/s if any subject to freeze shall get de-freezed and to be operated by the company.

d) The Appellant company is directed to submit a certified copy of this order to ROC, NCT of Delhi and Haryana within thirty days (30) of the receipt of this order.

e) This order is confined to the violations, which ultimately leads to the impugned action of striking of the name of the Appellant Company, and it will not come in the way of Respondent to take appropriate action(s) in accordance with law, for any other violations/offences, if any, committed by the Appellant company prior or during the striking off of the Appellant Company.

f) Resultantly, the present appeal i.e. Company Appeal No. 92/252/ND/2023 stands allowed with aforesaid terms.

Let the copy of the order be served to the parties. File be consigned to records.