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Judgment
The appellant, Mr. Hirendra Gupta, the Director & Shareholder of M/s. National Trading Company Pvt. Ltd. (for brevity ""the company"") has filed
this appeal 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. 13083 with CIN No.
U74899DL1992PTC000087 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 as a Private Limited Company under the Companies Act, 1956 with the Registrar of Companies, NCT
of Delhi and Haryana on 26.01.1992 having CIN U74899DL1992PTC000087.
The registered office of the company M/s. National Trading Company Pvt. Ltd., having Registered Office at Regd. Office at 555, Esplanade Road,
Delhi-110006.
The authorized share capital of the Company at the time of incorporation was Rs.50,000/- divided into 500 equity shares of Rs.100/- each. The
authorized share capital of the company was increased from time to time and at present is Rs.2,50,000/- divided into 2500 equity shares of Rs.100/-
each, on 13.11.2002.
The main objects of the company are:
a) Commission agency business of any kind whatsoever; export and import of all commodities; to acquire and carry on the business known as
'Imperial Educational and Scientific Works
and other main objects.
It is the claimed that neither the company nor the Appellant or any other person on behalf of the company has received any notices from ROC
before publishing the name of the appellant company in the Official Gazette on 27.04.2017.
It is already stated that though authorized share capital of the company was increased from Rs. 50,000/- to Rs. 2,50,000/- and appropriate forms to
that effect were filed with ROC but the ROC did not change the status in the master data of the company.
It is further submitted that due to the wrong entry in and around 2014, there were some discrepancies in the entries of the authorized share capital
of the company in the master data and due to technical reasons the statutory documents could not be uploaded from 2011-12 to 2014-15.
It is further submitted that the Chartered Accountant of the company raised MCA Ticket No. 1252074, on 14.10.2014 regarding wrong entry in the
master data. But the ticket had been closed without any resolution.
It is further submitted that the appellant wrote to the ROC with all the supporting documents for correction of the Master Data and had also made
personal visits to ROC for the same. It is only in June, 2015 when the ROC finally corrected the master data of the company, and the issue was
resolved.
It is further submitted that in 2015 the Chartered Accountant of the company who was entrusted with the task of filing of financial statements and
annual returns fell seriously ill and so the company failed to file its statutory returns.
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 2011-12 to 2016-17. The balance sheet for 2016-17 reflects the profit
of Rs. 1,299/-.
b. The bank account of the company is with ICICI Bank reflects the closing balance amount of Rs 31,637/- as on 31-03-2016.
c. The copies of Form 26AS showing self-assessment tax paid from the Assessment years 2013-14 to 2015-16 as downloaded from website of
Income Tax Department.
d. The copy of the purchased order dated 16.08.2017 from the Pioneer Chemical Companies in the company for the amount of Rs. 44,840/-.
e. The copy of the cash invoices raised for the purchase of scientific instruments during period of April 2017 to July 2017 approximately to the tune of
Rs. 13,600/-.
f. The copy of various DIR-12 forms filed by the company at ROC Portal for uploading the resolution appointing additional directors and directors in
and around April, 2017.
g. The copy of the perpetual lease deed dated 24.12.2012 effected from 04.09.2002 of the plot allotted by the Delhi Development Authority to the
company to be used as warehouse chemical trade.
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 not wilful or with mala-fide motive, and the company for no fault of it, is suffering set-back from all areas.
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 filed its report. As per the report the company has not filed Income Tax Returns from 2012-13 to 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 but during the striking off, the company was
undergoing set back in business and has been continuously till date putting efforts to shift and revive its business. Therefore, the company 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. In present case the company has security deposit and fixtures and furniture to pick up
its business with good prospects.
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.