M/s Namahte Hospitality Private Limited vs Registrar Of Companies

Mahendra Khandelwal, Member (Judicial)

This is an appeal filed under section 252(1) of the Companies Act, 2013 read with Rule 87A of the National Company Law Tribunal (Amendment) Rules, 2017 by the Appellants namely M/s NAMAHTE HOSPITALITY PRIVATE LIMITED [CIN: U55101DL2012PTC232224] and Mr. Abhishek Nanda [Director of Appellant Company] [DIN: 02831076] (APPELLANT No. 2) in relation to an order of striking off the name of the respondent company passed by the Respondent RoC with effect from 08.08.2018 under the provisions of Section 248(1)(c) of the Companies Act, 2013 read with Rule 9 of the Companies (Removal of Names of Companies from the Register of Companies) Rules, 2016.

Notice was issued to both the respondents vide order dated 11.05.2022 for filing their appearance and reply.

Ld. Counsel for Income Tax Department appeared before this Tribunal on 08.05.2024 and stated that they have no objection in the present matter.

The appellants have made the following submissions in their petition: -

a. Learned counsel for the Appellant represents that the Company was incorporated under the provisions of Companies Act, 1956 on 01.03.2012 and has its registered office at: C-117, Shakti Nagar Extension, Delhi – 110052. As such it is governed within the jurisdiction of this Tribunal (New Delhi Bench) and also RoC, NCT of Delhi & Haryana.

b. The Authorized Capital of the Company is Rs. 5,00,000/-. The Paid-up Capital of the company was Rs. 1,00,000/- as per Master Data of the company.

c. The Ld. Counsel for the appellant submitted that the company was in operation at the time of strike-off and was carrying on the business of food catering/canteen in various hospitals. That the father of appellant no. 2 was critically ill due to which appellant no. 2 was preoccupied and therefore could not complete the statutory filings within the prescribed time period.

d. It is further submitted that there is a fixed deposit in the name of the company dated 28.04.2020 having its maturity date as 23.05.2021. In order to pay-off all necessary expenses and liabilities, the appellants wish to withdraw the Fixed Deposit for which the company must have an active status.

e. It is averred that appellant company has been regular in maintaining annual accounts and has conducted its board meetings regularly in the past. It is pleaded that there was a case-pending before the Hon’ble Delhi High Court due to which the directors could not devote their attention to the affairs of the company, as a result of which mandatory compliances got inadvertently omitted to be fulfilled by the company.

f. The appellant company lastly submitted that the company intends to carry on business in pursuance of interest of all stakeholders. Nevertheless, the appellant company is willing to rectify the previous defaults by filing all its pending Balance Sheet and Annual Returns with the RoC in compliance with statutory requirements.

g. The appellants have prayed to allow the present restoration appeal of the company herein namely M/s NAMAHTE HOSPITALITY PRIVATE LIMITED with such directions as deemed fit by this Tribunal in the interest of justice.

The respondent RoC have made the following submissions in their reply: -

a. That the company was incorporated on 01.03.2012 and the last annual return and Balance Sheet had been submitted by the appellant company with the office of the RoC before it was considered to be struck-off, pertained to the Financial Year that ended on 31.03.2015. The Respondent RoC further contended that neither any subsequent documents were filed by the appellant company with the Respondent RoC to obtain the status of a “Dormant Company” u/s 455 of The Companies Act, 2013.

b. That as per Memorandum of Association of the struck off company, the main objects of the company are as follows: -

“To manage, administer own and to carry on the business of running hotels, motels, holiday, camps, guest houses, restaurants, canteens, caterers, cafes, taverns, pubs, bars, beer houses, refreshment room and lodging or apartments, housekeepers etc.”

c. That as per records available on MCA 21 Portal, the last directors of the company were as follows: -

Abhishek Nanda, R/o A-66, 3rd Floor, Ashok Vihar, Phase-3 (Behind Laxmi Bai College) New Delhi – 110052, India.

Satish Kumar Nanda, R/o C-117, Shakti Nagar Extension, Ashok Vihar, Delhi – 110052, India.

d. That the respondent RoC had issued notice in the form of STK-1 on 11.06.2018 intimating the company and its directors about the aforesaid defaults providing them a fair opportunity to respond. The said notice were sent to the company i.e. M/s NAMAHTE HOSPITALITY PRIVATE LIMITED along with its directors namely Mr. Abhishek Nanda and Mr. Satish Kumar Nanda on 05.08.2019 and 01.08.2019 respectively through Book Now Pay Later) service of the Department of Post vide ED885304761IN , ED885304775IN and ED885304789IN.

e. Subsequently, the public notice in the form STK-5 was issued for 9,421 companies containing the name of the appellant company published on the website of Ministry of Corporate Affairs on 23.06.2018.

f. Thereafter, the name of the company was struck off as per provision 248(1)(c) of the Companies Act, 2013 read with rule 9 of the Companies (Removal of Names from the Register of Companies) Rules, 2016 vide Public Notice No. ROC/DELHI/248(5)/STK-7/4865 dated 08.08.2018, wherein the appellant company’s name appears at S. No 13510.

g. Hence the RoC contended that it had reasonable cause to believe that the company was not in operation at the time of strike off and was not carrying on any business for a period of two immediately preceding financial years (as indicated by non-filing of the financial statements of the company for 2 or more years).

h. The respondent RoC pleads that the action of striking off the present company from the register of companies maintained by RoC was therefore legal and justified owing to above circumstances and was taken in good faith by the RoC.

i. The RoC has made following observations on the basis of information provided by the appellant: -

S.NO

PARTICULARS

REMARKS

1.

REVENUE FROM OPERATIONS

As per Profit & Loss Account attached

F.Y. 2020-21     Rs. 47,467/-

F.Y. 2019-20     Rs. 36,00,698/-

F.Y. 2018-19     Rs. 41,21,143.62/-

F.Y. 2017-18     Rs. 39,06,200/-

F.Y. 2016-17     Rs. 20,58,072/-

F.Y. 2015-16     Rs. 35,34,000/-

F.Y. 2014-15     Rs. 40,88,628/-

2.

AUDITED FINANCIAL STATEMENTS

Submitted with the Petition for the following Financial Years : 2014-15 ; 2015-16 ; 2016-17 : 2017-18 ; 2018-19 ; 2019-20 and 2020-21.

3.

BANK STATEMENT

Submitted with the Petition for the period from 01.01.2015 to 31.03.2020

4.

INCOME TAX RETURN

NOT SUBMITTED WITH THE PETITION

j. On 08.05.2024, the Ld. Counsel for RoC appeared before this Tribunal and submitted that they have no objection to the proposed restoration of the name of the company, subject to filing of pending statutory compliances.

ANALYSIS AND FINDINGS

We have considered the plea of the Appellant and the representations of RoC. It is evident from the plea of the Appellant that it admits the default. However, the Appellant is seeking restoration of its name in the register as maintained by RoC relying on the ground that due to lack of professional guidance and support, company was unable to complete the requisite statutory filings.

The Appellant is also willing to rectify the omission instantly with abundant precaution as to all statutory compliances in the future. Having considered submissions of all the parties and considering the appreciation of documents placed on records to substantiate their respective claims, we are of the view that it is just and equitable that the name of the Company should be restored on the register of companies as maintained by the Respondent RoC.

In Purushottamdass and another (Bulakidas Mohta Company Private Limited V. Registrar of Companies, Maharashtra & Others.), The Hon'ble Bombay High Court observed as follows: -

"The objects of Section 560(6) of the Companies Act, is to give a chance to the company, its members and creditors to revive the company which has been struck off by the Registrar of Companies, within a period of 20 years, and to give them an opportunity of carrying on the business only after the company judge is satisfied that such restoration is necessary in the interests of justice”.

In M.A. Rahim & another V. Sayri Bai, the Division Bench of Hon'ble Madras High court, reported in MANU/TN/0218/1973, has held that the word just' connotes reasonableness and something confirming to 'Rectitude' and 'Justice ', something Equitable and Fair.

As an opportunity to the appellants to rectify their default in filing pending statutory compliances, the appeal is allowed, subject to payment of costs of Rs. 50,000/- to the Registrar of Companies. The restoration of the Appellant Company’s name in the Register will be subject to their filing all outstanding documents for the defaulting years as required by law and completion of all formalities, including payment of any late fee or other charges which are leviable by the Respondent RoC for the late filing of statutory returns. The name of the Appellant Company [M/s Namahte Hospitality Private Limited] shall then stand restored in the Register of the RoC, as if the name of the company had not been struck off.

The direction for freezing the bank account(s) of the Appellant Company, if on this ground, shall consequently be also set aside immediately to enable the company to carry out its business operation. Compliance of this order for restoration shall be made by the Respondent with all its consequential effects within one week of compliance by the Appellant.

The appeal is allowed and disposed of accordingly. Let the copy of the order be served to the parties.