Manka Profiles Private Limited vs Registrar of Companies

L. N. Gupta, Member (T)

The present Appeal has been filed by M/s Manka Profiles Private Limited (hereinafter referred to as the 'Appellant Company') through its Ex-Directors Sh. Surjeet Singh and Sh. Ravinder Singh Chauhan, invoking the provisions of Section 252(3) of the Companies Act, 1956 for restoration of the name of the Appellant Company in the register of the Registrar of Companies, NCT of Delhi and Haryana (RoC).

As per the averments, M/s Manka Profiles Private Limited was incorporated as a Private Limited Company on 27.11.2003 with CIN No. U25209DL2OO3PTC123254 and having its registered office at D-40A, Shop No. 4, Tandon Road, Adarsh New Delhi- 110033, which is within the jurisdiction of this Tribunal.

As per averments, the main objects of the Appellant Company, inter alia, are as under:

"To carry on the business as manufactures, producers, importers, exporters, merchants, distributors, commission agents, brokers, whole sale and retail dealers in all types of profiles, sheets, channels, doors, windows, sections made of metal, PVC, plastic, fibre, wood and parts, accessories and components thereof....."

The Appellant Company has submitted that the RoC Delhi and Haryana had initiated proceedings under Section 248(5) of the Companies Act, 2013 and struck off the name of the Appellant Company from its Register vide Notice No. ROC-DEL/248(5)/STK-7/5071 dated 01.09.2017. The name of the Appellant Company appeared at serial no. 12558 of the list of companies, whose names were struck off due to default in non-filing of the Financial Statements & Annual Returns.

The Appellants have submitted that the company was active since its incorporation. In order to corroborate their submission, the Appellants have placed on record the Allotment Letter dated 18.03.2008 of the property i.e., Plot No. HCP-01 at Yamunapuram Residential Scheme, Bulandshahar U.P. (975.00 Sq. mtrs.) acquired by the Appellant Company in an auction from the Bulandshahar Development Authority. The Allotment letter is reproduced overleaf :

It is stated by the Appellant Company that one of its Director Mr. Aakash Verma had approached the Appellant No. 2 and 3 for development of the plot as he was not having sufficient funds for making payment to the Bulandshahar Development Authority as per the payment schedule.

It is further stated by the Appellant Company in its synopsis that in the year 2016, the Bulandshahar Development Authority had cancelled the allotment of the aforesaid plot of the Company, against which the Appellant Company i.e., Manka Profiles Private Limited has filed a Writ Petition before the Hon'ble High Court of Uttar Pradesh at Allahabad for restoration of the plot, which is pending before the Hon'ble High Court.

It is further averred by the Appellant Company :

"11. That However, Mr. Aakash Verma has never supported to the Applicant No. 2 and 3 in finalizing the books of the accounts and even when the Applicant No. 2 and 3 approached statutory auditor to finalize the balance sheet to file the annual returns, and the Statutory Auditor has not supported the Applicant No. 2 and 3 in finalizing the books of accounts.

That it is to bring into the kind notice of this Hon'ble Tribunal that Mr. Aakash Verma in order to usurp the said Applicant No. 1 Company, in the year 2012, filed a frivolous Company Petition No. 103(ND) of 2012 of oppression and mismanagement against the said Applicant No. 1 Company and the Applicant No. 2 and 3 herein.

That Mr. Aakash Verma had also been trying to usurp the Plot from the said Applicant No. 1 Company be employing illegitimate and illegal ways. The Applicant No. 1 Company through the Applicant No. 2 has already filed a Criminal Complaint in this regard with the Bulandshahar (U.P) Police Station".

That the Appellant Company has also placed on record a copy of the Criminal Complaint dated 22.12.2020 written to S.H.O. of Police Station, Bulandshahar against one Mr. Aakash Verma and Bulandshahar Development Authority.

Income Tax Department did not file its report despite opportunities.

That the RoC has filed its report dated 01.07.2021, wherein, it has opposed the prayer made for restoration of the Appellant Company. That the RoC has stated the following in its report :

"6. That the Respondent most respectfully submits that the action of striking off of the present Company was legal and justified and was the result of the operation of the law, as the company was not carrying on any operations for a period of two immediately preceding financial years (as indicated by non-filing of the financial statements of the Company for two or more years and also non-filling of the income tax return and Company has not submit Bank Statement).

On perusal of petition received, it has been found that the petitioner has neither enclosed any Financial Statements nor any other documents with petition to support the claim that the Company was in operation or was carrying on any business at the time it was struck off by this office."

That during the course of hearing on 04.08.2021, the Ld. Counsel for the Appellant has submitted that "he has received some additional documents and therefore, seeks an adjournment to bring the documents on record". Accordingly, this Bench has directed the Appellant to bring the same on record by filing additional affidavit within a week. That vide  Order  dated  24.09.2021,  this  Bench  has  observed  that  the Appellant has failed to file the additional documents in compliance of the order dated 04.08.2021.

After hearing submissions of both the parties and perusing the Appeal and documents placed on record, this Bench observes that the Appellant Company has not pleaded the details of the Writ Petition filed before the Hon'ble Allahabad High Court. However, the details of the said Writ Petition are discovered from the Criminal Complaint (Pg. 61 to 68 of the Appeal) filed by the Appellant Company before the S.H.O of P.S. Bulandshahar, U.P. The scanned copy of the complaint is reproduced below :

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That from the aforesaid document, it is observed that the Civil Misc. Writ Petition No. 48610 of 2013 titled M/s Manka Profiles Private Limited Vs. State of U.P was dismissed by the Hon'ble High Court vide order dated 26.10.2016. It is also observed that the Criminal Complaint, which discloses the details of the writ petition, is dated 22.12.2020, whereas the company was struck off on 01.09.2017 itself. It is, therefore, evident that the complaint was filed in the name of the Appellant Company, when it was not in existence.

Further, as regards to the filing of Petition of Oppression and Mismanagement bearing no. 103(ND) of 2012, the Appellant Company has failed to place the details and present status of the case.

That we also observe that the Appellant Company has not placed before this adjudicating authority any material document like Balance Sheets, Income Tax Returns and Bank Statements, which could depict that the Appellant Company was in operation or carrying out its business or it is otherwise just to restore the Company in the register of RoC. Further, in spite of the opportunity granted to the Appellant Company vide order dated 04.08.2021, it has failed to file any such additional documents. The same is corroborated by the ROC in its Report.

In the circumstances, it is worthwhile to refer to the Judgement of Hon'ble NCLAT in the matter of Alliance Commodities Private Limited Vs. Office of Registrar of Companies, West Bengal, Company Appeal (AT) No. 20 of 2019 :

"9. Section 252 (3) of the Companies Act, 2013 empowers the Tribunal to order restoration of a Company whose name has been struck off from the Register of Companies, if such company, any member or creditor or workman thereof feeling aggrieved by such striking off applies before the Tribunal seeking restoration of the struck off company to the Register of Companies before the expiry of twenty years from the publication in Official Gazette of notice under Section 248(5). The exercise of such power is properly regulated and depends upon satisfaction of the Tribunal that the Company at the time of its name being struck off was carrying on business -10-Company Appeal (AT) No. 20 of 2019 or in operation or otherwise it is 'just' that the name of company be restored. We do not find ourselves persuaded to agree with the proposition canvassed by learned counsel for the Appellant that in spite of Appellant's inability to demonstrate that the Company was at the relevant time carrying on business or in operation, the Tribunal had vast powers to order restoration of Company on the ground "or otherwise". This term "or otherwise" has been judiciously used by the legislature to arm the Tribunal to order restoration of a struck off company within the permissible time limit to take care of situations where it would be just and fair to restore company in the interest of company and other stakeholders. Such instances can be innumerable. However, this term "or otherwise" cannot be interpreted in a manner that makes room for arbitrary exercise of power by the Tribunal when there is specific finding that the Company has not been in operation or has not been carrying on business in consonance with the objects of the Company. A Shell Company or a Company having assets but advancing loans to sister concerns or corporate persons for siphoning of the funds, evading tax or indulging in unlawful business or not abiding by the statutory compliances cannot be allowed to invoke this expression "or otherwise" which would be a travesty of justice besides defeating the very object of the Company...."

In view of the above, this Bench is of the view that the Appellant Company has failed to bring anything on record, which could demonstrate that the Company was either in operation or carrying out its business or it is otherwise just and fair to restore the name of the Company in the register of RoC. Further, the Appellant Company has also failed to bring any order from any court of law to depict pendency of any material litigation by or against the company continuing from the date prior to striking off the name of the Appellant Company.

In sequel to the above, we are not inclined to interfere with the striking off action taken by the RoC against the Appellant Company under Section 248(5) of the Companies Act 2013.

The Appeal is accordingly Dismissed with cost of Rs.25,000/- (twenty-five thousand) only to be deposited with the Ministry of Corporate Affairs.

Let the copy of this Order be served upon the Parties, RD and ROC, Delhi.