AI Structured Summary
Not yet generated for this judgment
Judgment
Justice Anant Bijay Singh;
The present Appeal under Section 421(1) of the Companies Act, 2013 filed by the Appellant being aggrieved and dissatisfied by the order dated 15.10.2019 passed by the National Company Law Tribunal, Kolkata Bench, Kolkata in Appeal No. 729/KB/2019 whereby and whereunder the appeal filed by the Appellant herein for restoration of the name of the Company in the Register of Companies, West Bengal was dismissed.
The facts giving rise to this Appeal are as follows:
The Appellant herein is a shareholder of a company being MPH Infrastructure Pvt. Ltd., a company limited by shares, incorporated under the provisions of the Companies Act, 1956 having its registered office at Kolkata-700094. The authorized share capital of the company is Rs. 15,00,000/- only divided into 1,50,000 equities share of Rs. 10/- each. The issued, subscribed and paid-up share capital of the company is Rs. 3,00,000/- divided into 30,000 shares of Rs. 10/- each.
ii) further case is that the Memorandum of Association of the company would reveal that the company has been incorporated to, inter alia, carry on the business of real estate and development and construction work. The Appellant herein became aware of the fact that the name of the company was struck off from the Registrar of companies by the Respondent herein, in the month of March, 2019, when the Appellant herein went to the office of the Respondent to enquire about the filing of the balance sheet and annual returns of the said company. Being utterly shocked and surprised, the Appellant being a shareholder of the company had checked the Ministry of Corporate Affairs Portal (MCA 21 Portal), wherefrom it appeared that the status of the company was showing "struck off".
iii) Thereafter, brought to the attention of the Appellant that the Respondent had issued a Public Notice No. ROC/WB/STK/2017/1 dated 07.04.2017 in For STK-5 and Notice of Striking Off and Dissolution in STK-7 via Notice No. ROC/WB/STK/2017/2 dated 30.06.2017. The said Notices issued by the Respondent dated 07.04.2017 and 30.06.2017. Aggrieved by the same, the Appellant had preferred an Appeal under Section 252(3) of the Companies Act, 2013 being Appeal No. 729/KB/2019, inter alia, seeking resolution of the name of the company on the Register of Companies maintained by the Registrar of Companies, West Bengal, praying for direction upon the Respondent to restore the name of the company and to file and/or register with the Respondent and to rectify the Master Data by modifying the status from striking off to active. After hearing 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 along with written submissions submitted that the company was incorporated in 2012 with specific object to, inter alia, carry on the business of real estate and development and construction work, as per the Memorandum of Association. The Company is a bona fide entity carrying on business in the real estate sector and has been operating for the past many years.
It is further submitted that the omission to file the Company's financial statements and annual returns for period fiscal years was the result of an unintentional oversight and ignorance on the part of the person tasked with handling such filing as well as the former Company Secretary who was assigned that duty. The omission was neither intentional nor purposeful, the Company or the Appellant should not be subjected to the severe penalty of having the Company struck off as a result of the error. Based on these submissions the impugned order is fit to be set aside and the Appeal be allowed.
On the other hand, the Ld. Counsel for the Respondent No. 1/ROC during the course of argument and in his reply along with written submissions submitted that in exercise of the power conferred upon the Registrar of Companies under provision of Section 248 of the Companies Act, 2013 the said Registrar can strike off the name of a Company from his register after complying with certain formalities as provided by the said section when he has reasonable cause to believe that the company is not carrying on business or in operation as the company failed to file its statutory returns since its incorporation. The date of incorporation of the said company in 26.12.2012, the company has not filed its statutory returns since incorporation for the last 8 years.
It is further submitted that it is an evident from the records that the Company has not filed its balance sheets and annual returns since incorporation with the office of the Respondent. As per provision of Section 252 of the Companies Act, 2013, a struck off company can be restored only on the direction of the NCLT within a period of twenty years from the publication in the official Gazette of the notice. In this regard, it is submitted that in terms of the said provisions, the NCLT while passing an order for restoration it is to be satisfied that the company is carrying on business or in operation.
It is further submitted that as per available records maintained by the office of the Registrar of Companies, West Bengal, the company was struck off on 09.06.2017 after complying with the provision of section 248 of the Act. The Registrar of Companies has issued notices to the companies as well as the Directors under Section 248(1) (in STK-5) of the Act, read with Rule 7 of the Companies (Removal of names of Companies from the Register of Companies) Rules, 2016 for removal of name of the company from the register of the companies as there was reasonable cause to believe that the Company was not functioning or in operation for the period of last two immediate preceding financial years and has not made any application within such period for obtaining the status of dormant company under Section 455 of the Companies Act, 2013.
It is further submitted that due to non-filing of statutory returns by the Company, the competent authority drew an opinion that the Company was not carrying on business or in operation. As per provision of Section 248(5) of the Act after expiry of the prescribed time period and as no response has been received from the company and the public, a notice (in STK No. 7) dated 30.06.2017 was issued by the Registrar of Companies, West Bengal reflecting the name of the company as strike off w.e.f. 09.06.2017 and the same was published in the Official Gazette on 15.07.2017. Based on these submissions, the Tribunal has rightly passed the impugned order, therefore, there is no merit in the present Appeal, the present Appeal is fit to be dismissed.
After hearing the parties and going through the pleadings made on behalf of the parties as also the impugned order dated 31.05.2021, we observe that the Tribunal has recorded in para 7 of the impugned order, the financial statements for the financial years ending 31.03.2013 to 31.03.2018 which shows that the Company is a going concern, but a look at the financial statements on the other hand shows that the company was not doing any kind of business and further para 8 it has been recorded that the company is not earning any revenue from operations since its incorporation i.e. from 2012-13 to 2017-18, therefore, has not earned any profits and does not have any fixed assets in the company.
Taking all the facts aforenoted, we agree with the reasons given by the Tribunal. The Impugned Order dated 15.10.2019 passed by the National Company Law Tribunal, Kolkata Bench, Kolkata in Appeal No. 729/KB/2019 is hereby affirmed. There is no merit in the instant Appeal, the instant Appeal is hereby dismissed.
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 (Kolkata Bench, Kolkata), forthwith.