M/S Hari Om Buildmart Private Limited vs Registrar Of Companies And Ors.

Dr. Deepti Mukesh, J

The present appeal is filed by the M/s Hari Om Buildmart Private Limited (for brevity the ‘Company’), under Section 252(1) 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 is incorporated as a Private Limited Company with the Registrar of Companies, NCT of Delhi and Haryana

under the Companies Act, 1956 on 19.03.2007 with CIN U45200 DL2007 PTC160754, having its registered office at DTJ-701, DLF Tower, Jasola,

New Delhi â€" 110044, within the jurisdiction of this Tribunal.

The Authorized Share Capital of the company is Rs. 4,71,71,000/- divided into 47,17,100/- equity shares of Rs. 10/- each. The issued, subscribed

and paid up share capital of the Company is Rs. 4,70,89,800/- divided into 47,08,980- equity shares of Rs. 10/- each, as per the Master Data Annexed.

The main objects of the company are:

(i) To purchase acquire, take on lease or in any other such lawful manner, any land, buildings and structures and to develop the same and

dispose of or maintain the same and build township, markets, commercial complex with all or related conveniences thereon and to equip the

same or any part of other buildings, or any related amenities or conveniences i such as drainage and to act as commission agents and

dealers in farm land building whether commercial, residential whether meant for purchase, sale, resale or let out.

(ii) To lay out, develop, construct, build, erect, demolish, alter, repair or do any other such civil and constructional work in connection with

any building or building schemes, roads, highways, sewers, bridges, canals, dam, reservoirs, embankments, irrigations, Improvements,

sanitary, water electric works and power supply works or any other such structural or architectural work related thereto and for such

purpose to prepare estimates, designs, plans, specification or models related thereto.

(iii) To purchase land for sale, and to develop into farm land plots, construct buildings and flats for sale on instalments or otherwise and to

act as real estate agents and to carry on the business as civil contractors for constructions of markets, commercial complex, amusement

parks roads, buildings, houses, flats, school complex consisting main building, playgrounds, library and laboratory's building, hostel

buildings, and residential flats, factory's sheds and buildings, dams, canals, tanks, bridges, hydel projects, power house, tunnels, culverts,

drains, channels, sewages, gardens and such other necessary related civil and constructional works of all types.

(iv) And the other main object.

The Respondent herein had issued Public Notice bearing No. ROC/DELHI/248/STK-5/2018/2912 dated 18.06.2018. 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. 8458).

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. Copy of Bank Statements of the Company of Central Bank of India for the period from 01.04.2014 to 13.04.2017 showing various transaction details

of the company and reflecting closing credit balance of Rs. 17,931/-as on 31.12.2016.

ii. Copies of Audited Financial Statements of the company for the period from 2015-16 to 2017-18. Financial Statement for F. Y. ended 2018 reflects

Non-Current Investments of Rs. 46,87,75,488/-.

iii. Copies of Income Tax Returns for the Assessment Years 2016-17 to 2018-19.

The ROC has filed its reply on 07.06.2019 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 opportunities to do the same.

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 “just†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 could not be termed as 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 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.