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Judgment
Justice Anant Bijay Singh;
The present Appeal under Section 421 of the Companies Act, 2013, has been filed by the Appellants being aggrieved and dissatisfied by the order dated 18.11.2019 passed by the National Company Law Tribunal, Mumbai Bench, Mumbai in C.P. 1982/252(1)/2019 whereby and whereunder Appeal filed by the Appellants for restoration of the name of the Appellant Company in the register maintained by the Registrar of Companies, Mumbai (the ‘ROC’), was dismissed by the Tribunal holding that the petitioner (Appellant herein) failed to provide necessary information and proper financial statement.
The facts giving rise to this Appeal are as follows:
The Appellants are the Original Petitioners before the NCLT, Bench at Mumbai who have filed Company Petition No. 1982 of 2019 under Section 252 of the Companies Act, 2013 read with Rule 87A of the NCLT (Amendment) Rules, 2017.
ii) The Petitioner Company namely Metro Mining Pvt. Ltd. was incorporated on 08.09.2012. The Petitioner Company has authorized share capital of Rs. 100000/- and minimum paid up capital of Rs. 10000/- The main objects of the Petitioner Company are as follows:
To carry on the business of mining, processing, producing, trading of steel and all types of mining, mining related trading, import and export of Gemstones, metals, goods, foods, and buy, sale, process, semi-process of gemstones in India and outside India.
To carry on in India or elsewhere the business of prospecting, exploring, operating and working on mines, quarries and to win, set, crush, smelt, manufacture, process, excavate, dig, break, acquire, develop, exercise, turn to account, survey, produce, prepare, remove, undertake, barter, convert, finish, load, unload, handle, transport, buy sell, import, export, supply and to as agent, broker, stockiest, distributor, consultant, contractor, manager, operator or otherwise to deal in all sorts of presents and future steel, ores, minerals, deposits, goods, substances & materials, including sands, stones, and soils, chalk, clay, china clay, betonies, broils, calcite and coal, lignite, brimstone, brine, bauxite, limestone, precious and other stones, gold, silver, diamonds, iron, aluminum, titanium, vanadium, mica, apalite, chrome, copper, gypsum, rutile, sulphate, tin, zinc, zircon, tungsten, silicon, brass, and other allied materials, by products, mixtures, blends, residues & substances, and to do all incidental acts and things necessary for the attainment of the objects.
To search, survey, discover and find out and the acquire by concession, grant, purchase, lease, license, degrees & tenders the allotment or otherwise of land or water area from government, semi-government, local authorities, private bodies, corporations and other persons, such rights, power, and privileges whatever for obtaining mines, open cast mines, bucket mines, quarries, deposits for the accomplishment of the above objects.
iii) On 27.09.2012, Petitioner Company submitted Application No.209 for Prospective Licence for Decorative Stone in the Bolangir District and after verifying the necessary documents and other relevant documents, where upon on 04.07.2015, the Directorate of Mines, Odisha issued Order and granted Prospective Licence for Decorative Stone over an area of 50.40 Acre or 20.346 Hectors in Village - Jamuna No.5, PS Titilagarh in Bolangir District of Odisha.
iv) In October, 2017, Chartered Accountant of the Petitioner Company namely Krutika and Associates prepared Audit Report of the Year 2017-2018 and filed the same, along with the necessary documents with the Income Tax Department.
On 15.02.2018, Appellant No. 2, i.e. Saurab Jaydeep Nikam and Pratibha Madhukar Pawar filed Form No. DIR-12 for appointment of Directors in the Petitioner Company in the ROC, Mumbai. The said two persons were made Directors of the Petitioner Company. At the time of filing the said Form, the Company Secretary of the Petitioner Company, namely Janish Jayesh Modi though provided sufficient information by the present Appellants, did not fill the said form correctly and wrongly mentioned the Registered Address. The said Company Secretary also did not inform the same to the present Appellants in time but the Appellants came to know after the filing of Company Petition before the NCLT, Mumbai.
vi) On 07.03.2018, after the issuance of the order, the Petitioner Company has deposited necessary fees of Rs. 10,000/- in the Government Treasury vide SBI Scroll No. 48, SBI, Balangir Branch, Odisha. Thereafter, the Petitioner Company also submitted Form No. D to the Principal Secretary to Government, Department of Steel and Mines, Odisha, Bhubaneswar.
vii) On 21.03.2018, after the acceptance of appropriate Application along with necessary documents, the Mining Officer has accepted the said Application and issued receipt in favour of the Petitioner Company. Thereafter, after compliance of all the necessary and required formalities, Director of Geology has sent Petrographic Study Report to the Petitioner Company for further proceedings. On 04.07.2018, after the receipt of the said Mining Application, Mining Officer, Balangir Circle considered the relevant documents and sent the same to the Tahsildar, Mumbai for further proceedings.
viii) On 19.07.2018, pursuant to the provisions of Section 248(4) of the Companies Act and Rule 7 of the Companies (Removal of names of Companies from the Register of Companies) Rule, 2016, the Respondent/RoC had issued Public Notice thereby proposing to remove/strike off the name of the Appellant Company from the Register of Companies and also invited objections to be submitted within 30 days from the date of Public Notice. On 04.09.2018, the Ministry of Corporate Affairs has issued receipt for fees of Form No. DIR-12 in favour of the Appellant Company.
ix) On 12.09.2018, pursuant to the provisions Section 248(5) of the Companies Act and Rule 9 of the Companies (Removal of names of Companies from the Register of Companies) Rule, 2016, the Respondent had issued notice of striking off and dissolution of the Appellant Company. In October, 2018, Chartered Accountant of the Petitioner Company namely Krutika and Associates prepared Audit Report of the Year 2018-19 and filed the same along with the necessary documents in the Income Tax Department. On 18.12.2018, Mining Officer, Balangir Circle has been sent Mining Licence Application along with necessary documents and technical enquiry report to the Director of Mines, Odisha for further necessary action.
On 01.01.2019, Sanjeevani Consultancy issued letter stating that the process regarding Mining Licence of the Petitioner Company is going on and also stated that several necessary and required permissions have been granted by the Mining Authorities to the Appellant Company.
xi) On 08.05.2019, considering the ongoing pending proposal arising out of Mining Licence, the Appellant Company was left with no alternative but to file Company Petition No. 1982 of 2019 before the NCLT, Mumbai Bench under Section 252 of the Companies Act, 2013 and prayed for restoration of the Appellant Company in the Register of Companies. On 26.06.2019, after issuance of notice, the Respondent/RoC was directed to file Reply within 15 days. On 22.10.2019, the NCLT adjourned the said matter till next date i.e. 18.11.2019. Till the said date, the Respondent had not filed any reply to the said Petition. On 18.11.2019, without considering the necessary documents submitted before the RoC, ongoing process of Mining Licence and no reply filed by Respondent, the NCLT was pleased to dismiss the said Company petition without assigning any specific reasons. Hence this Appeal.
The Learned Counsel for the Appellants during the course of argument and in his written submissions submitted that after the appointment of present Directors, the Company Secretary Janish Jayesh Modi did not mention the present addresses of the said Directors in the prescribed Form submitted to the ROC. The said Company Secretary committed the said fault which resulted in the present litigation. Therefore, notices could not be served to the Directors of the Appellant-Company.
It is further submitted that even after service of notice, the Respondent/ ROC did not appear before the NCLT nor filed any reply. Inspite of the same, the NCLT was pleased to pass present impugned order without assigning specific observations. As per Section 252(1), the Tribunal ought to have given reasonable opportunity to the Respondent/ROC. Since incorporation the Appellant-Company is carrying on business as mentioned in the MOU thereby submitting various applications for mining license to the Government Authorities which subsequently issued mining license to the Appellant-Company. Further, on 04.07.2018 (at page 96 of the Appeal), the Mining Officer had issued corresponding letter thereby considering application of the Appellant-Company for mining license which established the case that the Appellant-Company was carrying on its business. Thereafter, on 19.07.2018, Respondent ROC issued public notice under Section 248 of the Companies Act, 2013.
It is further submitted that Page Nos.91 to 96 of the Appeal shows that the Appellant-Company submitted application for grant of mining lease, study report, correspondence letters etc. with the Government Authorities. Further, the Appellant-Company also submitted Audit Reports from 2017 to 2019 with ROC. Thus, the business of the Appellant-Company was on the verge of starting prior to the striking off notice dated 12.09.2018, and the business came to be stand still due to the striking off of the company.
Based on above submissions, the impugned order is fit to be set aside and the instant Appeal be allowed.
On the other hand, the Respondent / Registrar of Companies during the course of argument and in his reply, stated that the Appellant company i.e. Metro Mining Private Limited was incorporated with the office of the Registrar of Companies, Mumbai on 08.09.2012, but due to failure in filing of its statutory returns since incorporation, the name of the company has been considered for striking off by the Registrar of Companies, Mumbai in suo moto action under the provisions of Section 248 of the Companies Act, 2013 and also in pursuance of the circulars issued by the Ministry of Corporate Affairs, Govt. of India, New Delhi from time to time. The basis for striking off the name of the company was the continuous non-filing of the statutory returns (which are required to be filed under the Companies Act, 1956 and/or the Companies Act, 2013) and that the company was not carrying on any business or operation for a period of two immediately preceding financial years and has not made any application within such period for obtaining the status of a dormant company under Section 455, prior to its striking off. The aforesaid situation has arisen due to inaction on the part of the Appellant Company and its Directors/Officers. The appropriate action was taken by the Respondent No. 1 to strike off the company, which is duly prescribed under Section 248 of the Act.
It is further stated that in absence of any statutory filing from the Company and its Directors for more than 2 years, the Registrar struck off the name of the company on 11.09.2018 and the dissolution order was published on the website of the Ministry vide STK 7. Aggrieved by the said action of the Respondent No. 1, the appellant approached the NCLT, Mumbai Bench for restoration of the Company under Section 252 of the Companies Act. The Respondent No. 1, filed its reply before the NCLT on 16.09.2019, objecting/opposing the petition. The NCLT after hearing the matter, rightly dismissed the said Company petition vide the impugned order dated 18.11.2019.
After hearing the parties and going through the pleadings made on behalf of the parties, we are of the considered view that the company was making efforts to start mining activity and that its mining licence was under consideration of the Government, which should have been considered by the NCLT. Hence, impugned order dated 18.11.2019 is set aside. The appeal i.e. C.P. 1982/252(1)/2019 filed by the appellants before the NCLT is restored to the original file subject to condition that Appellant Company shall pay costs of Rs. 50,000/- to the Registrar of Companies, Mumbai within six (6) weeks from the passing of this judgment. The NCLT is requested to hear the parties after issuance of notice, and pass reasoned order in accordance with law at an early date.
With the above observations and directions, the instant Appeal is disposed off.
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, Mumbai Bench, Mumbai, forthwith.