M/s Ahuja Exims Private Limited vs Registrar Of Companies

L. N. Gupta, Member (T)

This Appeal has been preferred by M/s Ahuja Exims Private Limited invoking the provision of Section 252 (3) of the Companies Act, 2013 for restoration of the name of the Appellant Company in the register maintained by the Registrar of Companies (RoC), NCT of Delhi and Haryana.

As per the averments, M/s Ahuja Exims Private Limited, hereinafter referred as (Appellant Company) was incorporated on 23.12.1998 vide CIN No. U51909DL1998PTC097631 as a Private Limited Company Limited with its Registered office at B-381 Santa Vihar, New Delhi -110044 within the jurisdiction of this Tribunal.

Reportedly, "The main objects for which the company has been established as stated in the Memorandum 86 Article of Association are as under:

i. To sale, purchase and to deal in all kinds of import, export, licence/ entitlement, subject to banking regulations and Foreign Exchange Regulation and any other such law of the land.

ii. To carry on the business of importers, exporters, buyers, sellers, traders, distributors, stockists, agents, commission agents and dealers of all kinds of goods, commodities, articles and things of all description.

In its averment, the Appellant Company has stated the following:

" that the Appellant Company has been active since the date of its incorporation and has been maintaining all the documentation as provisions of Companies act 1956/2013. That the company was in operation at the time ofp ublication of the notice and carrying on the business operation and having Revenue from the operation 2,57,460 as on 31.03.2017, 3,65,862 as on 31.03.2018 and 3,46,697 as on 31.03.2019. Appellant company has various assets and liabilities, Loans, Trade Payable, fixed assets and reflected in the last audited balance sheet of the company."

It is further averred by the Appellant in Para 4.8 of the Appeal that:

"4.8 It is further submitted by the appellant that the failure to file financial statements and annual returns with the Registrar of Companies, NCT of Delhi and Haryana was due to inadvertence on part of the directors as the directors being assured that a professional was taking care of the formalities and due to lack of professional guidance and as such there was no willful or mala-fide motive of non-filing of the Financial Statements and Annual Returns.................... "

The Appellant has submitted that failure to file its Audited Balance Sheets and Annual Returns since the year ending 31.03.2016 might have given an impression that the business of the Company was not in operation. Consequently, the name of the Appellant Company was struck-off by the Respondent from there register under Section 248(5) of the Companies Act, 2013 on 29.10.2019.

That the Appellant Company has filed its Balance Sheet for the Financial years from 2015-16 to 2018-19.

That during the course of the hearing, the Ld. Counsel for Income Tax Department did not raise any objection to the appeal for restoration.

The Registrar of Companies in its reply has stated that "This Hon'ble Tribunal may please award cost in favor of the Respondent (Registrar of Companies) as the company deliberately failed to file its Statutory Returns with the Registrar of Companies under the Companies Act, 2013."

Since the Appellant Company has only annexed the balance sheets for the financial years 2015-16 to 2018-19, which are prepared subsequent to the date of striking off, this Bench sought the following clarifications from the Appellant Company on 05.10.2020:

"1) That the Appellant Company has submitted only the Balance Sheets from the Financial year 2015-16 to 2018-19 prepared subsequently to the date of Striking off There is nothing else submitted on record to indicate that the Appellant Company was in operation at the time of striking off

2) In view of the above, the Appellant Company is directed to submit the following:

a) The Bank statement from the year 2017 to 2019.

b) Any other document viz, IT Returns for the Assessment years from 2015-16 to 2019-20, to indicate that the Appellant Company was in operation at the time of striking off

c) Details of Fixed Assets like Land, Building etc, if any, wherefrom the Appellant Company has been in operation.

d) The purpose of revival of the Appellant Company.

3) The Appellant Company is directed to provide the aforesaid documents by way of an Affidavit by the 8th October 2020."

That the Appellant Company had failed to file the aforesaid documents, despite the fact that the last date of submission of the same was on 8.10.2020. Therefore, there is nothing available on the record, which could depict that the company was in operation or was carrying out its business at the time when its name was struck off by the RoC.

The provisions pertaining to restoration of the name of the Company are provided in the Section 252(3) of the Companies Act, 2013, which, inter alia, includes that if a company is carrying out its business or in operation or otherwise it is just that the name of the company be restored, this Tribunal can order the Respondent to restore the name of the company in the Register of Companies.

Here, it is worthwhile to refer to the Judgement of the 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 thereoff eeling 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 or in operation or otherwise it is 'just' that the name of company be restored. We do not f ind ourselves persuaded to agree with the proposition canvassed by learned counsel for the Appellant that inspite 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 "

In view of the above, we therefore, conclude that the Appellant Company was neither in operation nor was carrying its business at the time its name was struck off from the register of RoC. The Appellant Company failed to file any document which could justify its restoration in the register of RoC, In the circumstances, it is not just to restore the name of the Appellant Company.

The Appeal is accordingly dismissed.