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Judgment
This appeal is jointly filed by Directors and Shareholders of M/s. Out-Box Edutainment Private Limited (for brevity ""the company"") under section
252 of the Companies Act, 2013 (hereinafter called as the Act') against the order of the Registrar of Companies (ROC), NCT of Delhi and Haryana
dated 07.06.2017. The order mentioning the name of the Company at Serial No.14141 with CIN U80903DL2007PTC170952 was duly published in
Official Gazette on 30.06.2017. The name of the company has been struck off from the Register of Companies maintained by the respondent ROC,
under section 248(5) of the Act read with Rule 7 and Rule 9 of Companies (Removal of Name of the Companies from the Register of the Companies)
Rules, 2016.
It is stated that the company is incorporated under the Companies Act, 1956 as a Private Limited Company with the Registrar of Companies, NCT
of Delhi and Haryana on 30th November, 2007 having CIN U80903DL2007P1C170952.
The registered office of the company M/s. Out-Box Edutainment Private Limited is situated at 208, A-212C, Tirupati Plaza, Street No.1, Shakarpur,
Delhi-110092.
The authorized issued and paid up capital of the company is Rs. 1,00,000/- comprising of 10,000 Equity Shares of Rs.10/-each. The authorized
capital of the company was increased to Rs.12,50,000/- comprising of 1,25,000/- equity shares of Rs.10/- each vide approval of shareholders at the
extra- ordinary general meeting held on 12th August, 2009.
The main objects of the company are:
To carry on business of designing and developing products and services related to such ideas and inventions such as educational aids and word games
in language scripts in any language and to market such products and services in different form (such as board games, software and software program
products and hardware devices) and though different media (such as physical, electronic media such as Internet mobile phone services, Television and
print media.
As per the notice of non-compliance of provision of the Companies Act, 2013 in respect to filing of annual returns and financial statements since
incorporation, 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 appellants further submit that the preliminary notice in form STK-1 vide ROC letter no ROC-DEL/248(1)/ STK-1/ 114601 dated 22.03.2017
was received in the first week of April and was misplaced by the watchman. The said letter was then found by the appellant on 03.06.2017 which
was replied on 06.06.2017.
The appellants state that they had received copy of ROC public notice in form STK-5 vide ROC letter no. ROC-DEL/248/STK-5/721 dated
27.04.2017 which was replied on 01.06.2017.
The appellants further submit that without going into controversy of legality of striking off and in order to expedite the restoration of the name of the
company on the Roll of the ROC portal the Appellant has brought forward the following facts about it being in operation and functional during the
period of striking off:
a. The copy of financial statements of the company for the financial year from 2009-10 to 2016-17. In the year 2017 the company incurred losses of
Rs. 2,91,523/- but the balance sheet as on 31.03.2017 reflects fixed assets of total value amounting to Rs. 3,21,803/-
b. The company has incurred employee benefit expense to the tune of Rs.3,61,103/- for the financial year 2016-17 for around five employees.
c. The Company is maintaining and operating three bank accounts with Corporation Bank, HDFC Bank and ICICI Bank. The copy of the statement
of bank account of the company reflects that the business of the company as a going concern, running in normal course having balance amount of Rs.
32,954/- as on 31.07.2017 in Corporation Bank and Rs. 13,760/- as on 16.03.2017 in ICICI Bank.
d. The copies of Income Tax Returns filed for the assessment year 2008-09 to 2017-18. The tax paid by the company for A.Y. 2017-18 is Rs. 1388/-
and refund for the same period is Rs. 1390/-
e. The copy of VAT Registration certificate having TIN 28929622691 issued on 01.12.2010.
f. The copy of receipt of CST paid for amount of Rs.2866 as on 20.07.2017 to Commercial Taxes Department, Government of Telangana.
g. The copy of certificate of registration of trade mark u/s 23(2) r/w Rule 62(1) of the Trade Marks Act, 1999, dated 15.12.2008.
h. Two copies of certificate of registration of copyrights having registration No. A-88716/2010 dated 27.08.2010 in Artistic work and registration No.
L-33983/2009 dated 03.08.2009 in literary work.
i. The certificate of grant of patent having patent no. GB2488697 dated 26.05.2010.
It is further submitted by the Appellants 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 filed reply and 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 not filed its report but as per the documents filed by the Appellant, IT returns are filed upto year 2017-18.
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:
a. That the company at the time of its name was struck off was carrying on business.
b. Or it was in operation
c. 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 as per section 252(3) of the Act. 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.