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Judgment
This Appeal has been filed by Grafitti Designers Private Limited CIN: U18109DL2011PTC217858, invoking the provision of section 252 of the
Companies Act, 2013 for restoration of the name of the appellant company in the register maintained by the Registrar of Companies, NCT of Delhi
and Haryana.
As per the averments Grafitti Designers Private Limited was incorporated on 20.04.2011 and has its registered office at 9802, Sector-C- Pocket-9,
Vasant Kunj, New Delhi-110070 within the jurisdiction of this Tribunal. The main object of Company is to carry on the business of stationery.
A sweeping action was initiated by the RoC at the instance of MCA in striking of the names of several Companies who had failed to file their
Statutory Returns. The appellant had failed to file its Annual Returns and Financial Statements after the Financial Year Ending since incorporation
thereby giving rise to the surmise that the business of the company was not in operation. Consequently, its name was struck off by the Respondent
from the Register of Companies under Section 248 of the Companies Act, 2013, upon taking steps in accordance with law and issuing a notification in
the Official Gazette. The names of the affected companies were posted on its website.
The appellant company admits its default in carrying out the statutory compliances but submits that the same was due to lack of professional
guidance, inadvertence & oversight.
In order to corroborate its business operation the petitioner has placed before us the following evidence:
I. Copy of Audited Balance Sheet of the appellant company reflecting Revenue from Operation for the Financial Year Ending 31st March 2016 &
2017 as Rs. 3,09,500/- & Rs. 2,45,000/- respectively. It also has Long Term Borrowing & Tangible Assets for the Financial Years ending 2016 &
2017 as Rs.9,631,135/- & Rs.9,414,530/- Rs.3,07,915 & Rs.2,08,072/- respectively.
II. Copy of ITRs for the Assessment Year 2016-17 84 2017-18.
III. Copy of Bank Statement issued by HDFC Bank showing various business transactions.
IV. Copy of Memorandum of Settlement with the builder Blue Coast Infrastructure Development Pvt. Ltd who has agreed to refund their investment
pursuant to a suit for recovery filed by them. As per the settlement agreement they will receive the money by way of monthly installment till
25.08.2019.
V. Copy of invoices raised by the appellant company.
The provisions pertaining to restoration of the name of the company has been provided in Section 252 of the Companies Act, 2013 which includes
that if in the opinion of the Tribunal it is considered just and equitable to restore the name of the company in the Register of Companies, it may direct
the RoC to restore the name in its Register.
The case of the appellant is covered by a catena of judgments where restoration has been duly allowed. As per the law laid down, a chance should
be given to the company, its members and creditors to revive the company, giving them the opportunity of carrying on the business if the court is
satisfied that such restoration is necessary in the interest of justice.
A perusal of the documents referred to in paragraph 5 above, reflects that the appellant has been in business and also has to recover its investments
in terms of MOU executed with the Builder. It also has to liquidate its Long Term Borrowings of Rs. 96,31,135/-. All these factors necessitates
restoration of its name in the Register of Companies. Merely to disallow restoration on grounds of its failure to file annual returns would neither be just
nor equitable. As per several decisions of various Courts it should only be in exceptional circumstances that Courts should refuse restoration where
the company has been struck off for its failure to file annual return as that would be excessive or inappropriate penalty for that oversight.
Accordingly, the petition is allowed subject to payment of costs of Rs, 25,000/- to the Prime Minister Relief Fund. The restoration of the petitioner
company's name in the Register will be subject to their filing all outstanding documents for the defaulting years as required by law and completion of
all formalities, including payment of any late fee or other charges which are leviable by the respondent for the late filing of statutory returns. The name
of the petitioner company shall then stand restored in the Register of the Registrar of Companies (RoC), as if its name of the company had not been
struck off.
The direction for freezing the Bank Account(s) of the appellant company, if on this ground, shall consequently be also set aside immediately to
enable the company carry out its business operation. Compliance of this order for restoration shall be made by the respondent with all its consequential
effects within one week of compliance by the appellant.
The petition is disposed of accordingly.
Let the copy of the order be served to the parties.