Morgan Global Limited And Others vs Registrar Of Companies Nct Of Delhi And Haryana

Hemant Kumar Sarangi, Member (Technical)

The present appeal is filed by the M/s Morgan Global Limited and its Directors (for brevity the ‘Company’), under Section 252 of the

Companies Act, 1956 (for brevity ‘the Act’) against the order of striking off the name of the company, passed by the Respondent no. 1 under

section 248 (1) of the Act, issued vide notification No. ROC/DELHI/248(5)/STK-7/4865 and published on 08.08.2018 by Registrar of Companies, the

respondent herein.

The Appellant states that, the company was incorporated as a Private Limited Company with the Registrar of Companies, NCT of Delhi and

Haryana under the Companies Act, 1956 on 21.10.1991 with CIN U74899 DL1991 PLC046100, having its registered office at J4/57A, Khirki

Extension Malviya Nagar, New Delhi - 110017, within the jurisdiction of this Tribunal.

The Authorized Share Capital of the company is Rs. 10,0, 00,000/- divided into 1,00,00,000/- equity shares of Rs. 10/- each. The issued, subscribed

and paid up share capital of the Company is Rs.3,34,52,200/- divided into 33,45,220 equity shares of Rs. 10/- each, as per the Master Data Annexed.

The main objects of the company are:

(i) To promote, invest in companies and subsidiaries, deal with shares, stocks, bullion i.e. purchase, sell, buy, import & export and invest in companies

government and non-government, PSUs/private companies.

(ii) To purchase, manufacture, cause to produce, sell, import, export and trade in all types of commodities, crops, minerals, plant, machinery, tools and

equipments, fabrics made from natural or artificial fibes, garments, apparel, goods and beverages, edible, non-edible oils, other oils, forest products,

canned provisions, raw cotton and cotton manufactures, raw jute and jute manufactures, raw wool and wool manufactures, raw silk and silk

manufactures, textiles made out of natural and artificial fibres, handloom textiles, cottage industries ware, cotton waste, tea, minerals, ores, ferrous and

non-ferrous metals, metal, and metallic, non-metallic scraps, coffee, tobacco, spices, pharmaceuticals, shoes and leather ware, timber, automobiles and

its spares, diesel engines, pumps, agricultural implements, electric motors, transformers, switchgears and accessories, building hard-ware, furniture,

electrical, electronic applices, paper and paper products, all types of machinery and machine tools, dyes, chemicals, colours, paints, varnishes, books,

stationery items, glassware; utensils, crockery, pottery, table ware, scientific instrument, bicycles, carpets durries, rugs tiles and other floor coverings,

marbles, human hair, animal hair, jewellery, leather goods, magazines, books, toys, cosmetics, brassware, flowers, vegetables, furnishing materials,

glass.

(iii) And the other main object.

The appellant further states that, a sweeping action was initiated by the ROC, at the instance of MCA, in striking off the names of several

Companies who had failed to file their Statutory Returns. The Appellant Company has not filed its Annual Returns and Balance Sheet for F. Y. 2015-

16 and 2016-17, thereby giving rise to the surmise that the company was not in operation. Consequently, its name was struck off vide notice STK-7

dated 08.08.2018 by the Respondent from the Register of Companies under Section 248 of the Companies Act, 2013, upon taking steps in accordance

with law and issuing a notification in the Official Gazette. The names of the affected companies were posted on its website.

The Respondent herein had issued purported Public Notice bearing No. ROC/DELHI/248/STK-5/2018/2912 dated 18.06.2018 and had sought

explanation from the company as to why its name should not be struck off from the register of companies, on account of not carrying on any business

or operation for a period of two immediately preceding financial years and having not made any application, within such period, for obtaining the status

of a dormant company under section 455 of the Companies Act, 2013 (Act). Consequently, its name was struck off vide notice bearing no.

ROC/DELHI/248(5)/STK-7/4865 dated 08.08.2018 (name of the company is reflected at Sl. No. 13150), whereby name of 24280 companies have

been struck off from the Registrar of Companies and the Company has been dissolved.

As per the notice of non-compliance of provision of the Companies Act, 2013, the said company has not filed its Annual Returns and Balance Sheet

for F. Y. 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 appellant has submitted that the financial statement upto the year ending 31.03.2015, alongwith other statutory documents, were duly filed by

the Company with the Respondent (duly reflecting in the Master Data of the Company). The company was active and was carrying out its business

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 said facts are evident from the Bank Account statement of the Company for the

relevant period.

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

i. The copy of Bank Statements of the Company of City Union Bank for the period 06.05.2015 to 28.06.2018 showing various transaction details of

the company and reflecting closing credit balance of Rs. 24,728.33 as on 28.06.2018.

ii. The copies of Audited Financial Statements of the company for the F. Y. 2017-18. The Financial Statement for F. Y. 2017-18 reflects Non-Current

Assets in form of Fixed Tangible Assets of Rs. 34,275/-. Current Assets in form of Cash and Cash Equivalents of Rs. 38,328/-.

iii. The copies of Income Tax Returns for the Assessment Years 2015-16 to 2017-18. The tax paid by the company for A.Y. 2017-18 is Rs. NIL.

The ROC has filed its reply on 31.01.2019 in which it has been submitted that the Company had not filed its Financial Statement since Financial

Year ended on 31.03.2016. However, the ROC further submits that the company was struck off by the office of Respondent because neither the

company was carrying on any operation for a period of two immediately preceding financial years, nor obtained the status of a Dormant Company

under Section 455 of the Companies Act, 2013.

The Income Tax Department has not filed any reply in spite of being given repeated opportunity to do the same. Hence, the present appeal is

being decided in the absence of any reply from the Income Tax Department.

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 “justâ€​ to the adjudicating authority that the name of the company is to be restored to the

Register of Companies and the Section 252(3) further contemplates that one of the above 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.

The Appellant has submitted sufficient evidence that it has been in operation since incorporation and during the period preceding strike off,

therefore it could not be termed as a defunct company as per section 252 of the Act. Thus, taking into consideration the provisions of Section 252(1)

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 off the name of the company is hereby declared illegal

and 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.