M/s Narhari Chemicals Pvt. Ltd. vs Registrar Of Companies And Anr.

This appeal is filed by the company, M/s Narhari Chemicals Private Limited (for brevity the ‘Company’), through its Director, Mr. Vijay Goel

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 01.09.2017 vide notification no. ROC-DEL/248(5)/STK-7/5071 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 29.10.1992 having CIN U24299DL1992PTC050809.

The company is having registered office at F-77, Bhagat Singh Market, Gole Market, New Delhi-110001.

Authorized share capital of the Company is Rs.10,00,000/-divided into 10,000 equity shares of Rs.100/- each and issued, subscribed and paid up

share capital of the Company is Rs.2,65,000/- divided into 2,650 equity shares of Rs.100/- each.

The main objects of the company are:

i. To manufacture, produce, process, buy, sell, import, export, or/and otherwise deal in chlorinated paraffin wax, pvc, chemicals, rasin, dyes, dyestuff,

DOP , caustic soda, liquid chlorine, H.CL., S.B.P, chlorobenzene, calcium chloride, zinc chloride, iodize salt, iodine, salt, activated earth, insecticide and

pesticides, agricultural chemicals, fertilizers, all oils and edible oils, petroleum products, all types of chemicals, vermifuges, fungicides, insecticides,

germicides and fumigators and organic and inorganic chemicals of all kinds and types.

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 31.03.2000 to 31.03.2017. The Balance Sheet as on 31.03.2017

reflects cash and cash equivalent of Rs. 175/- and Loss of Rs. 10,650/-

ii. The copies of Income Tax Returns filed for the assessment years 2007-08 to 2017-18 as NIL returns.

iii. The copy of sale deed of agricultural land, dated 25.01.1993 executed by M/s Anand Land & Housing Private Limited in favour of the appellant

company, situated at khasra No. 59 village Ghitorni, Tehsil Mehrauli, New Delhi admeasuring about 3 bighas for total consideration of Rs. 1,62,500/-

iv. The copy of order of Hon’ble High Court of Delhi, dated 06.03.2014 in Company Petition No 131/2013, reviving the name of the appellant

company, which was struck off in the year 2007 vide notification published by registrar of companies, for non-compliance of statutory compliances

with registrar of companies.

The Registrar of Companies has stated that there was non-compliance of the order of Hon’ble High Court of Delhi, dated 06.03.2014 and no

steps were taken with respect to signatory updation and corresponding documents were to be filed in the format prescribed by Registrar of companies

to enable registrar of companies to revive the company and show the company status as ‘active’. The registrar of companies had hence

observed the non-compliance of the statutory requirements and as a consequences of that, struck off the name of the company with effect from

21.08.2017 in terms of provisions of section 248(1) of the Companies Act, 2013 read with rule 7 of the Companies (Removal of Names of Companies

from the Register of Companies) Rules, 2016. The registrar of companies 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.

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 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 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. It is also seen from the perusal of the provisions under Section 252(3), that if Tribunal is of the opinion it is “just†that the

name of the company is to be restored to the register of companies maintained by Registrar of Companies, such orders can be passed for the name of

the company to be so restored. For reference, the provisions of Section 252(3) of the Companies Act, 2013 is extracted hereunder:

252(3) “If a company, or any member or creditor or workman thereof feels aggrieved by the company having its name struck off from the

register of companies, the Tribunal on an application made by the company, member, creditor or workman before the expiry of twenty years

from the publication in the Official Gazette of the notice under sub-section (5) of section 248 may, if satisfied that the company was, at the

time of its name being struck off, carrying on business or in operation or otherwise it is just that the name of the company be restored to the

register of companies, order the name of the company to be restored to the register of companies, and the Tribunal may, by the order, give

such other directions and make such provisions as deemed just for placing the company and all other persons in the same position as nearly

as may be as if the name of the company had not been struck off from the register of companies.

Further, relying on the following Judgement, namely, order of Honourable High Court of Delhi in Company Petition No. 174/2013 dated

02.12.2013, which in brief reflects the following:

“The Court is of opinion that it is “otherwise just†that the company be restored to the register in case of an immovable property,

restoration can be ordered.â€​

where immovable property rights are involved and in the instant case also the facts vouch for the similar decision, it is only proper that the name of the

company be restored to the Register of Companies.

Hence, there exists a “justâ€​ ground for the restoration of the name of the appellant company in the Register of Registrar of Companies.

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.