Kuldeep kaur vs Registrar Of Companies And Anr.

This Appeal has been filed by the Company named "Indtech India Private Limited" hereinafter referred to as "the Appellant Company" invoking the provisions of Section 252 (3) of the Companies Act, 2013 (the Act) for restoration of the name of the Company in the Register maintained by the Registrar of Companies (RoC), NCT of Delhi & Haryana. The company has authorised capital of the Appellant-company is Rs.12,50,000/- and paid up share capital of Rs.11,50,000/-.

As per the averments, M/s. Indtech India Private Limited was incorporated on 02.11.1982 as a private limited company and has its registered office at K-88, Hauz Khas Enclave, New Delhi Having CIN No.U74899DL21982P1C014601.

Since incorporation, the appellant-company has been carrying on business to manufacture , produce, assemble, engineer, design, develop, use, buy, sell, operate, run, let on hire, import, export and otherwise generally deal in All kinds of earth-moving and agricultural machines, petrol and diesel engines, harvesting combines, sowing machines, reeping machines, thrushing machines, planting machines seed cleaning and processing machines, hay bailers, tractors, implements, their spare parts and their accessories and components, mobile or otherwise including hydraulic quipments, cranes, mining equipments. Heavy vehicles and machines for agricultural and reclamation drainage, irrigation , water-works, engineering, forest, cleaning, pumping and other purposes including drilling equipment, construction equipment, track-laying, vehicles and mechanical shovels.Spraying machines, vehicles and equipments, wheather mobile or otherwise, including piling equipment, dump trucks, scrapers, grades and loaders. Mobile workshops and garage equipment for repair and service station. Tube-wells, pumps, floating or otherwise, motors and irrigation machinery, Transportation equipment for movement of products and stores, machine personnel.

A sweeping action was initiated by the ROC at the instance of MCA in striking off the names of several Companies who had failed to file their Statutory Returns. The appellant had failed to file its Financial Statements and Annual Returns for the Financial Years from 2009-10, 2011-12, 2012-13, 2013-14, 2014-15, 2016-17, 2017-18 and 2018-19 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 vide Notice No. ROC-DEL/248/STK-5/721 dated 27.04.2017 followed by struck off Notification No. ROC/DELHI/248(5)/STK-7/2879 dated 30.06.2017.

The appellant-company admitted their default in carrying out the statutory compliances but submits that the same was due to lack of professional guidance, inadvertence and oversight. However, the appellant has submitted copies of its Financial Statements and Annual Returns for 2009-10, 2011-12, 2012-13, 2013-14, 2014-15, 2016-17, 2017-18 and 2018-19 with the petition and original submitted to the respondent.

The Appellant submits that the Appellant-Company has been fully complying in filing Annual Returns, Balance Sheets with the RoC since its incorporation. It is only for the last few years the requisite documents have not been filed beause of reasons there was a non-coordination between the Applicant and the processional being engaged for carrying out the said activities. Due to miscommunication, the statutory filing was not done with the respondent-RoC.

In order to corroborate above submissions the petitioner has placed before us the following evidence:

i) The Company has submitted Copies of Audited financial statements for the period ending 2009-10, 2011-12, 2012-13, 2013-14, 2014-15, 2016-17 , 2017-18 and 2018-19, Bank Statement from Syndicate Bank for the period 1.4.2018 to 30.09.2019 (Opening balance= Rs.49,309/-, Closing balance= Rs.11488/-) with the petition and submitted to the respondent. Appellant has also undertaken to file the pending reports.

ii) The Appellant-company attached copy of acknowledgements of Income-tax Returns for the A.Y. 2019-20.

iii) The Appellant-company attached copies of Sale Deed executed on 03.11.2010 of Property No. Y-144, Type Senator, 14th Floor, Building No.Y, DLF, Regency Park-II, Qutab Enclave Complex, Phase-IV, Village Cha_kkarpur, Tech. & Distt. Gurgaon, Haryana and Flat Buyer Agreement dated 17.09.2014 of Property No.D-0905, Supertech Araville, Sector-79, Gurgaon attaching copy of e.mail from Builder dated 04.09.2020 offering possession of the property.

iv) The Current Assets, Revenue from Operations, Cash & Cash equivalent, and Profit Before Tax for the company from 2015-2017 have been given as follows in the Audited Financial statements:-

Assets

Revenue from operations

Cash & Cash equi.

Profit Before Tax

Ending 31.3.2015

8066100

Nil

83079

(74211)

Ending 31.3.2016

8066100

2947678

244611

1-2892

Ending 31.03.2017

8066100

1255

435490

(74834)

The matter came up for hearing before the Bench on 09.03.2021 and the Order was reserved.

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 it is just and equitable to restore the name of the company in the Registrar of Companies, it may direct the RoC to restore the name in its Register.

The appellant has been able to satisfy this Bench that it has complied with the statutory requirements and has certain assets which necessitate and justify restoration of its name in the Register of Companies. A step as stringent as what has been taken at least requires an opportunity to the appellant to take remedial measures. 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 appeal is allowed subject to payment of costs of Rs.25,000/- to the Prime Minister Relief Fund. The restoration of the Appellant 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 appeal is allowed and disposed of accordingly.

Let the copy of the order be served to the parties.