Maninder Singh Sethi Pvt. Ltd. vs Registrar Of Companies And Anr.

This appeal has been filed by Maninder Singh Sethi, one of the members of M/s Jewel Hospitality 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. 9635 with CIN No. U55209DL2008PTC184877 was duly

published in Official Gazette on 27.04.2017. 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.

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

of Delhi and Haryana on 14th Nov. 2008, having CIN U55209DL2008PTC184877.

The registered office of the company M/s. Jewels Hospitality Private Limited is situated at S-274, Ground Floor, Greater Kailash Part-2, New

Delhi-110048.

The authorized share capital of the company at the time of filing of this appeal is Rs.5,00,00,000/- divided into 50,00,000/- equity shares of Rs. 10/-

each and the issued, subscribed and paid up capital of the company is Rs.2,40,00,000/- divided into 24,00,000/- Equity Shares of Rs.10/- each.

The main objects of the company are:

To acquire by purchase, lease, exchange or otherwise any movable or immovable property and any rights or privileges which the Company may deem

necessary or convenient for the purpose of its main business

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 further submitted that due to the closure of restaurant being operated by the company coupled with various other issues like change of auditor,

expiration of digital signature, etc., the company could not file the financial statements and annual returns since 2013-14.

It is further stated that the company had taken the premises for running the restaurant on lease, consisting of the Ground Floor & First Floor by

paying the security deposited of Rs. 1,70,00,000/-, on the undertaking of the landlord that the land is commercial land. However, the company could

only get the license to operate the restaurant on ground floor as land was not converted for commercial use. Thereafter the License for running the

restaurant also got cancelled/ expired due to the legal issues raised against the original landlord.

The company has been negotiating with the landlord for the refund of the security deposit of Rs. 1,70,73,090/- given by the company and for the

compensation of the cost of interior made by the company at ground floor and first floor. The dispute was pending since then and was on the edge of

finalization in the meantime the name of the company was struck off.

The company has planned to shift its restaurant at 11/4, Pusa Road, New Delhi-110060, on getting the refund of security deposit and compensation

from the landlord and, by shifting all the fixtures, Equipments, furniture presently situated at the old location. The copy of the offer letter by the land

owner of the new property is on record, which can be availed June 2018. Only if the company is revived, the business and property of the company

can be put back on task.

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 2013-14 to 2017-18. The company has incurred losses to the tune of

Rs. 2,78,034/- in the year 2016-17 and Rs. 25,120/- in year 2017-18.

b. The bank account of the company is with State Bank of India reflects the closing balance amount of Rs 74,707/-as on 18.05.2018.

c. The copies of Income Tax Returns filed for the assessment year 2014-15 to 2017-18. The tax paid by the company for A.Y. 2017-18 is Rs. 1,350/-

as TDS.

d. The copy of license issued by Restaurant Approval Committee (Northern Region) dated 10.01.2011 to operate the Restaurant which was valid till

30.12.2015

e. The copy of the offer letter by the land owner of the new property dated 15th June 2018 is on record.

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 not wilful or with mala-fide motive, and due to commercial exigencies created by the landlord of the company leading to legal

issues, 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. All the IT returns till 2017-18 are duly filed. The Income Tax has no objections if the company is

revived.

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.