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Judgment
This appeal is filed by the company, M/s Ayan Constructions Private Limited (for brevity the ‘Company’), through and alongwith its Director,
Ms. Nutan Singh, under Section 252(1) of the Companies Act, 2013 (for brevity ‘the Act’) against the order of striking off the name of the
company passed by the respondent under section 248 (1) of the Act read with Rule 7 of Companies (Removal of Names of Companies from the
Register of Companies) Rules, 2016 published on 30.06.2017 vide notification no. ROC-DEL/248(5)/STK-7/2879 by Registrar of Companies, the
respondent herein.
The company is incorporated as a Private Limited Company under the provision of Companies Act, 1956 with the Registrar of Companies, NCT of
Delhi and Haryana on 14.02.2005 having CIN U45201DL2005PTC132962.
The company is having registered office at 308 Vishal Bhavan, 95 Nehru Place, New Delhi-110019.
Authorized share capital of the Company is Rs.2,00,000/-divided into 20,000 equity shares of Rs.10/- each and issued, subscribed and paid up share
capital of the Company is Rs.1,00,000/- divided into 10,000 equity shares of Rs.10/- each.
The main objects of the company are:
i. To purchase, sell, resell, construct, take on lease, take on mortgagee, hire or otherwise acquire and deal in any immovable property including lands,
buildings, tenements and hereditaments of any tenure, houses, flats, bungalows, shops, offices, farm houses, godowns, and any rights, interest and
privileges therein and to develop and to turn them to account or otherwise sell, rent, alienate, mortgage, charge or otherwise deal with all or any of
such lands, tenements and buildings.
And other main objects.
As per the notice of non- compliance of provisions of the Companies Act, 2013 in respect to filing of annual returns and financial statements since
incorporation, 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 company was in operation and the business activities were carried out by the company 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 appellants have stated that no notice under section 248(1) of the Act in the form of STK-1 was received by the Company or any of the
directors or any person on their behalf and hence not afforded any opportunity of being heard before striking of the name of the company.
However, without going into the controversy of the latches in following the due procedure of law by Registrar of Companies before the final act of
striking off the name of the company from the register of companies maintained by Registrar of Companies, for non-filing of statutory documents by
company for the relevant period, through publication of notice on 30.06.2017, the appellants have preferred to prove with documents and records that
the company was in operation and doing business during the period of striking off the name of the company as a better remedy.
The Appellant has brought forward the following facts about it being in operation and functional during the period of striking off:
i. The copies of financial statements of the company for the financial years from 31.03.2011 to 31.03.2017. The Balance Sheet as on 31.03.2017
reflects fixed assets of Rs. 18,404/- and Loss of Rs. 323/-.
ii. The copy of service agreement, dated 29.12.2016 executed by the appellant company in favor of Mr. Nandkishor Sharma to perform certain
support service like road mapping, designing and civil work with respect of road construction for gram panchayat and in pursuance of which the work
order, dated 19.12.2016 placed by the Municipal Corporation Of Didwana.
iii. The copy of work order, dated 07.02.2018 executed by Assistant Engineer Watershed Development and Land Conservation, Ladnu in favour of
M/s Nandkishor Sharma.
iv. The copy of service agreement, dated 13.01.2017 executed by the appellant company in favour of the M/s D.M. Construction Company to perform
the certain service like purchase, set up and installation of road lights, including all related electrical items and the copies of purchase orders for the
financial year 2017 issued by GMR Limited in favour of M/s D.M. Construction company.
It is further submitted by the Appellants 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 management and due to lack of professional guidance and as such there was no wilful or
mala-fide motive behind non-filing of the Financial Statements and Annual returns.
The Registrar of Companies has stated that it has no objection if the name of the Company is restored on proving by the Company that it was
carrying on business or was in operation and the Company be also directed to file financial statements up to date with appropriate filing and additional
fees.
The Income Tax Department has submitted in its report that there is no outstanding demand against the Assessee and has no objection if the
company is considered for revival.
The Section 252(3) contemplates that one of the 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 namely:
i. That the company at the time of its name was struck off was carrying on business.
ii. Or it was in operation
iii. Or it is otherwise just that the name of the company be restored on the register.
The Appellant have submitted evidence that it has been in operation since incorporation and therefore could not be termed as defunct company.
Thus, taking into consideration the provisions of Section 252(3) 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 the name of the company is 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.