Mandeep Singh Suri vs Registrar Of Companies And Ors.

Present appeal is filed by the company, M/s Jay Madhok Energy Pvt. Ltd.(for brevity the ‘Company’), through its director, Mr. Mandeep

Singh Suri, under Section 252 of the Companies Act, 2013 (for brevity ‘the Act’) against the order of striking off the name of the company

passed by the Respondent under section 248 (1) of the Act read with Rule 7 of Companies (Removal of Names of Companies from the Register of

Companies) Rules, 2016 published on 08.08.2018 vide notification no. ROC/DEL/248(5)/STK-7/4865 by Registrar of Companies, the respondent

herein.

The company is incorporated as a Private Limited Company under the provision of Companies Act, 1956 with the Registrar of Companies, NCT of

Delhi and Haryana on 25.09.2009 having CIN U40200DL2009PTC194705.

The company is having its registered office at D-143 Defence Colony, New Delhi- 110024.

Authorized share capital of the Company is Rs.5,00,00,000/- and issued, subscribed and paid up share capital of the Company is Rs.1,01,00,000/- .

The main objects of the company are:

i. To carry on the business of refiners, stores, suppliers and distributors of petroleum and petroleum products including the business of extracting,

treating ,pumping, drawing, transporting, distilling, purifying and dealing in petroleum and mineral oil and to purchase and otherwise acquire,

manufacture, refine, purify treat, reduce, modify, distil, blend, smelt, compress, store, hold, transport, use, experiment with, market, supply, distribute,

exchange, sell or otherwise dispose off, import, export, trade, act as agents/ dealers in all kinds of Crude Oil, Natural Gas (NG), Liquified Natural Gas

(LNG), Compressed Natural Gas (CNG), Liquefied Petroleum Gas (LPG), Compressed Hydrocarbons, Petroleum and Petroleum Products, Mineral

Oils and Carbon Black Feedstock, Asphalt, Sulphur, Clays, Bitumen, Nitrate, Coals, Ores, Minerals and in general sub soil products or the by products

which may be delivered, produced, prepares, developed, compounded, made or manufactured there from or the substances obtained by mixing any of

the foregoing with other substances.

And other main objects.

As per the notice of non- compliance of provisions of the Companies Act, 2013 in respect to filing of annual returns and financial statements for

years 2014-15, 2015-16 and 2016-17, 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 notice dated 21.06.2018 under section 248(1) of the Act in the form of STK-1 was served on Company before

striking of the name of the company. The said notice was duly replied by the appellants vide letter dated 13.07.2018 which is annexed with the appeal.

The Appellant has submitted that the company was in operation and the business activities were carried out by the company during the period of

striking off but the reporting of such activities through Annual Returns and Financial Statement had not been filed with Registrar of Companies due to

inadvertence on part of the management.

The Appellant has brought forward the following facts about it being in operation and functional during the period of striking off:

i. The copy of Bank Statement of ICICI Bank, from 01.12.2016 to 31.07.2018, reflecting various transactions done by the company during the period

of striking off and having closing balance of Rs. 19,76,298/- as on 31.07.2018.

ii. The copy of Sales Tax Registration Certificate vide Registration no. 03892219360 dated 29.05.2018 and GST Registration Certificate vide

Registration no. 03AACCJ3632N1ZM dated 03.01.2018.

iii. The copy of VAT Registration Certificate vide Registration no. 03892219360 dated 29.05.2018 issued under Punjab VAT Act,2005.

iv. The copy of CNG Agreement entered into between the appellant and M/s Indian Oil Corporation Ltd. (PSU) dated 18.07.2017 for a period of 5

years from the date of execution of agreement i.e. 18.07.2017.

v. The copy of Heads of Agreement (HoA) entered into between GAIL GAS LIMITED as seller and JAY MADHOK ENERGY PRIVATE

LIMITED as buyer for sale of Compressed Natural Gas dated 14.11.2017 for a period of 2 years.

vi. The copy of the application made by the Company for filing E form DIR 12 dated 31.05.2018.

vii. The copies of Income Tax Returns filed for the assessment years 2013-14 upto 2017-18. The tax paid for assessment year 2017-18 is Rs. 437715.

viii. The copy of relevant Form 26AS showing payment of TDS on the income accruing to the appellant company.

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 has 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 submitted any report but the appellant has filed an affidavit along with the relevant documents dated

17.10.2018 stating that appellant has paid Income Tax Returns and appellant has also annexed all the challans showing payment of Income Tax

returns along with the affidavit.

The grounds contemplated under section 252 of Companies Act, 2013, namely, that of the company carrying on business or was in operation at the

time of striking off its name, and where it appears “just†to the adjudicating authority that the name of the company is to be restored to the

Register of Companies. It is also seen from the perusal of the provisions under Section 252(3), that if Tribunal is of the opinion it is “just†that the

name of the company is to be restored to the register of companies maintained by Registrar of Companies, such orders can be passed for the name of

the company to be so restored. For reference, the provisions of Section 252(3) of the Companies Act, 2013 is extracted hereunder:

252(3) “If a company, or any member or creditor or workman thereof feels aggrieved by the company having its name struck off from the

register of companies, the Tribunal on an application made by the company, member, creditor or workman before the expiry of twenty years

from the publication in the Official Gazette of the notice under sub-section (5) of section 248 may, if satisfied that the company was, at the

time of its name being struck off, carrying on business or in operation or otherwise it is just that the name of the company be restored to the

register of companies, order the name of the company to be restored to the register of companies, and the Tribunal may, by the order, give

such other directions and make such provisions as deemed just for placing the company and all other persons in the same position as nearly

as may be as if the name of the company had not been struck off from the register of companies.

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:

i. That the company at the time of its name was struck off was carrying on business.

ii. Or it was in operation

iii. Or it is otherwise just that the name of the company be restored on the register.

The Appellant have submitted sufficient evidence mainly the possession of immovable property by the company and further efforts of investment

to be made in immovable property by the company and that it has been in operation during striking off and therefore 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.

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.