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Judgment
Justice Anant Bijay Singh;
The present Appeal under Section 421(1) of the Companies Act, 2013, has been filed by the Appellant through its Shareholder Sh. Bhajan Lal Kamboj, being aggrieved and dissatisfied by the order dated 31.12.2020 passed by the National Company Law Tribunal (New Delhi, Special Bench, Court-II) in Appeal 341/252/(ND)/2020 whereby and whereunder appeal filed by the Appellant Company for restoration of the name of the Appellant Company in the Register maintained by the Registrar of Companies (RoC), NCT of Delhi and Haryana was dismissed by the Tribunal.
The facts giving rise to this Appeal are as follows:
The Appellant Company was incorporated under the Companies Act, 1956 on 09.07.1990. The main objects of the Company are as follows:
To manufacture, assemble, fabricate, buy, sell, export, import, hire, alter, trade or otherwise deal in all types of Electric Control Panels, Distribution Boards power supply and all types of Electric and Electronic Appliances such as room coolers, desert coolers, coolers fans, cooler pumps, washings machines, iron presses, steam presses, geysers, Mixers, transformers, televisions radios, refrigerators, air conditioners, electric motors, UPS system, voltage stabilizer, battery and battery charger and allied goods.
To carry on agency business or to act as agents for Indian and Foreign principles to sell, purchase, import, export for Electric Control Panel, Distribution Boards and Power Supply and Electricals and Electronic appliances of all kinds.
To render technical and engineering services and to act as consultants, contractors, stockiest, suppliers, distributors, users, whole sellers and retailers in all kinds of electric control panels, Distribution Boards and Power supplies.
iii) The Authorized Share Capital of the Company is Rs. 5,00,000/- divided into 5000/- Equity shares of Rs. 100/- each. The issued, subscribed and paid-up share Capital of the Company as on date is Rs. 4,98,000/- divided into 4980 Equity shares of Rs. 100/-. The Appellant Company was incorporated with Directors namely Mr. Madan Lal Kamboj, Mr. Bhajan Lal Kamboj and Mrs. Saroj Rani Kamboj. The aforesaid directors are still continuing in the Appellant Company. The accounts of the Company are prepared and audited every year by the Auditor M/s Aggarwal Subhash Chand & Co., Chartered Accountants and the Company is following Annual System of Accounting. The Balance Sheets of the Company are prepared right from its incorporation. The Audited Balance Sheet for the year ended 31.03.2016, 31.03.2017, 31.03.2018 & 31.03.2019 and the Annual Returns of the Appellant Company have been filed regularly by the part time junior accountant/part time accountant of the Appellant Company, who seeks the help of Statutory Auditor of the appellant company for filing it with the ROC.
iv) The Junior Accountant/ part Time Accountant of the Company left the job during the month of January, 2016 and left Delhi permanently without informing the Directors about the filing of balance sheet and annual returns. Due to the absence of Accountant, the balance sheet and annual return for financial year 2015-16, 2016-17, 2017-18 and 2018-19 were not inadvertently filed with ROC. Thereafter, on verification it is found that the Respondent No. 1 struck off the Appellant Company’s name from the Register of Companies through arbitrary exercise of powers conferred under Section 248 of the Companies Act, 2013 on the allegation that the Appellant Company has not been carrying on any business or operation for a period of two immediately preceding financial years vide Public Notice dated 08th August, 2018 (Impugned Notice) wherein the name of Company is appearing at Serial no. 10474. Thereafter, being aggrieved by the notice of the Respondent No. 1 of striking off, the Appellant Company approached the Tribunal under Section 252 of the Companies Act, 2013 for revival of the Appellant Company and after hearing both the parties, the Tribunal passed the impugned order which led to filing of this Appeal.
The Ld. Counsel for the Appellant during the course of argument and in his memo of Appeal submitted that dissolution was given effect in pursuant to Section 248(5) of the Companies Act, 2013 without complying with provision of Sub-section (6) to the Section 248 of the Act, whereby in the said provision it is mandatory for Respondent i.e. ROC to make sufficient provision for realization of all the amount due to the Company and for the payment or discharge of its liabilities and obligations by the Company within a reasonable time and after obtaining necessary undertakings from the managing directors, directors or form any other person in charge for the management, if necessary, before passing any such order of dissolution, however, neither the company nor the directors of the Appellant Company were in receipt of any prior information before publication of such notice of dissolution of the Company in the official gazette and it was to the utmost shock of the Company that Respondent No. 1 failed in its statutory duty to make sufficient provision for realization of amount due to the Appellant Company and payment or otherwise discharge of liabilities of the Appellant Company. Further submitted that while passing the impugned order, the Tribunal failed to consider the fact that the Appellant Company was regularly preparing its financial statements and the balance sheets for the financial years 2015-16, 2016-17, 2017-18 & 2018-19 and also has filed ITR for the Assessment Year 2019-20 & 2020-21. Further submits that the Appellant Company had been carrying operations on the land (fixed asset) of the Company since incorporation till the year 2016.
On the other hand, the Respondent No. 1 in his reply stated that the Appellant Company has filed its financial statements till financial year 31.03.2015, due to which the Respondent had reasonable cause to believe that the Appellant company was not in operation and in terms of provision of Section 248(1) Notice was sent to the Appellant company and also to its directors by invoking the provisions of Section 20 of the Companies Act, 2013. After expiry of time as mentioned in notice published/sent and non-receipt of any objection from the company/directors, dissolution in form STK-7 having effect from 08.06.29018 was published on the website of Ministry of Corporate Affairs on 08.08.2018. Further, it is stated that the Respondent has not objection to the grant of prayer of the Appellant subject to such order which this Tribunal may deem fit and proper.
After hearing the parties, going through the pleadings made on behalf of the parties and in view of the fact that the Audited Balance Sheet for the year ended 31.03.2016, 31.03.2017, 31.03.2018 & 31.03.2019 and Income Tax Return of the Appellant Company shows that the Appellant Company is having substantial movable as well as immovable assets. Therefore, it cannot be said that the Appellant Company is not carrying on any business or operations. Hence, we are of the view that the order passed by the NCLT, New Delhi as well as RoC, NCT Delhi & Haryana is not sustainable in law.
In view of the aforenoted, we set aside the impugned order dated 31.12.2020 passed by the National Company Law Tribunal (New Delhi, Special Bench, Court-II) in Appeal 341/252/(ND)/2020. The name of the Appellant Company be restored to the Register of Companies subject to the following compliances.
Appellant shall pay costs of Rs. 50,000/- (Rupees Fifty Thousand) to the Registrar of Companies, NCT Delhi & Haryana within 30 days.
ii) After restoration of the Company's name in the Register maintained by the RoC, the Company shall file all their Annual Returns and Balances Sheets. The Company shall also pay requisite charges/fee as well as late fee/charges as applicable.
iii) Inspite of present orders, RoC will be free to take any other steps punitive or otherwise under the Companies Act, 2013 for non-filing/late filing of statutory returns/documents against the Company and Directors.
The instant Appeal is allowed to the above extent. I.As, if any, stand disposed of.
Registry to upload the Judgment on the website of this Appellate Tribunal and send the copy of this Judgment to the National Company Law Tribunal (New Delhi, Special Bench, Court-II), forthwith.