Fantasy Hotels Mohali Pvt. Ltd. vs Registrar Of Companies And Anr.

Present appeal is filed by the company, M/s Fantasy Hotels Mohali Limited (for brevity the ‘Company’), through and along with its Director,

Mr. Sanjay Sinha, 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 Registrar of Companies, the respondent herein, 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.

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 11.07.2007 having CIN U55101DL2007PTC165753.

The company is having registered office at 119, Indraprakash Building, 21 Barakhamba road, New Delhi.

Authorized share 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

share capital of the Company is Rs.1,00,000/- divided into 10,000 equity shares of Rs.10/-each.

The main objects of the company are:

i. To carry on the business of hotels, restaurants, café, discotheque, tavern, beer house, refreshment rooms, lodging house- keepers, licensed

victuallar, wine and beer, spirit merchants, importers and manufactures of aerated, mineral and artificial waters, other drinks, business of proprietors of

clubs, baths, dressing rooms, laundries, reading, writing and newspaper rooms, libraries grounds and places of amusement, recreation, sports,

entertainments, attractions of all kinds, and to establish and provide all kinds of conveniences and attractions for customers and other and in particular

writing and smoking room, safe deposit, telephones, radios, televisions video, stores, shops, lodging and lavatories.

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

Financial Year 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.

The appellant has stated that no notice under section 248(1) of the Act in the form of STK-1 was received by the Company or any of the directors

or any person on their behalf, before striking of the name of the company.

The appellant has further contended that the Registrar of Companies did not comply with the provisions of Section 248(6) of the Companies Act,

2013 before passing the Order under Section 248(5) of the Companies Act, 2013. The provisions of section 248(6) of the Companies Act, 2013. is

reproduced below:

The Registrar, before passing an order under sub-section (5), shall satisfy himself that sufficient provision has been made for the realization

of all amount due to the company and for the payment or discharge of its liabilities and obligations by the company within a reasonable time

and, if necessary, obtain necessary undertakings from the managing director, director or other persons in charge of the management of the

company: Provided that notwithstanding the undertakings referred to in this sub-section, the assets of the company shall be made available

for the payment or discharge of all its liabilities and obligations even after the date of the order removing the name of the company from the

Register of Companies.

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, through publication of notice 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 copies of financial statements of the company for the financial years from 2013-14 to 2016-17. The fixed assets in the form of immovable

property reflected in Balance Sheet as on 31.03.2017 are of Rs. 2,05,516/-

ii. The copy of registered sale deed of land, dated 28.12.2007, admeasuring 12 Bigha 4 Biswa situated at village Khanpura, Mohali, in favour of

company.

iii. The copy of Application for approval of change of land use for property admeasuring 2.69 acres situated at village Khanpur, Mohali, Punjab

submitted to the Deputy Director, Local Bodies Department, Government of Punjab dated 23.06.2016

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 grounds contemplated under section 252 of Companies Act, 2013, namely, that of the company carrying on business or was in operation at the

time of striking off its name, and where it appears “just†to the adjudicating authority that the name of the company is to be restored to the

Register of Companies. It is also seen from the perusal of the provisions under Section 252(3), that if Tribunal is of the opinion it is “just†that the

name of the company is to be restored to the register of companies maintained by Registrar of Companies, such orders can be passed for the name of

the company to be so restored. For reference, the provisions of Section 252(3) of the Companies Act, 2013 is extracted hereunder:

252(3) “ If a company, or any member or creditor or workman 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 workman before the expiry of twenty

years from the publication in the Official Gazette of the notice under sub-section (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.

Further, relying on the following Judgements, namely, order of the Honourable High Court of Guwahati in Company Petition 24/2012 dated

05.06.2017; order of the NCLT Bench III in Company Appeal No. 127/252//ND/2018 dated 25.04.2018; order of Honourable High Court of Bombay

in Company Petition No. 6 of 1981 dated 06.04.1994, order of Honourable High Court of Delhi in Company Petition No. 174/2013 dated 02.12.2013;

and order of Honourable High Court of Delhi in Company Petition No. 200 of 2011 which in brief reflects the following:

In aforementioned decisions, while construing Section 560(6) of the Companies Act, 1956 which is pari materia to present Section 252(3), as extracted

above of the Companies Act, 2013, it has been held that the word “just†has to be understood in the background of the specific language of the

sub-section not on the basis of the principle of ejusdem generis. Further, the aforementioned judgements therein elucidates that apart from the situation

in which the company court can order restoration namely (i) when the company was carrying on business or was in operation at the time of striking

off its name there exists an alternative situation (ii) where it appears “just†to the company court that the name of the company be restored to the

register and that the rule of ejusdem generis will not apply because of the presence of the words “or otherwise†between the words thereby

providing for the following two types of situations. Further, the grounds for restoration as earlier provided Section 560(6) of Companies Act, 1956 has

been retained as such without any change by the Legislature from which the intention of Legislature can be clearly gathered in the present

dispensation as well. Furthermore, it is also seen that where litigations are pending and where immovable property rights are involved and in the instant

case also the facts vouch for the similar decision, it is only proper that the name of the company be restored to the Register of Companies. Hence,

there exists a “justâ€​ ground for the restoration of the name of the appellant company in the Register of Registrar of Companies.

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 Appellants 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.