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Judgment
Dr. Deepti Mukesh, J
This appeal is filed by the company, M/S Newtech Buildtech Private Limited (for brevity the ‘Company’), through its two Directors namely
Mr. Mukesh Kumar Roy and Mr. Sanjeev Kumar 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 26.12.2011 having CIN U70109DL2011PTC229241.
The company is having registered office at Unit-219, S/F, Vasundhra Enclave Plot No.1, Vardhman Sunrise Plaza LSC, Delhi-110096
Authorized share capital of the Company is Rs.10,00,000/- divided into 1,00,000 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 engage in real estate promoters, developers & project management association including civil, mechanical, electrical, and all other types erection,
commissioning projects, project trading consultant for execution of projects on turnkey basis for equipment of industrial, domestic and other purposes.
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, 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 copy of Bank Statement of Bank of Baroda, from 10.12.2013 to 07.03.2017, reflecting various transactions done by the company during the
period of striking off and having closing balance of Rs. 2,63,647/-.
ii. The copies of Financial Statements of the company for the financial years from 31.03.2013 to 31.03.2017. The Balance Sheet as on 31.03.2017
reflects cash and cash equivalent of Rs. 3,03,618/- and Loss of Rs. 2,107/-
iii. The copies of Income Tax Returns filed for the assessment years 2012-13 to 2017-18 as NIL returns..
iv. The copy of the allotment cum allocation letter bearing allotment no. BPO01/1400056 in favor of the appellant company for the property situated at
Greater Noida, Gautam Budh Nagar, Uttar Pradesh, admeasuring about 500 sq. m. along with the copy of the lease deed dated 30.07.2018 executed
between Greater Noida Industrial Development Authority, as lessor and the appellant company as lessee for the property Plot No. 39, Sector
Techzone-04, Greater Noida, Uttar Pradesh admeasuring 1000.62 sqm for the term of ninety years for consideration of Rs.1,15,97,186/-.
v. The copy of the possession certificate dated 08.08.2018 from Greater Noida Industrial Development Authority in the name of the appellant
company and copy of the invoices /challans regarding payment made to the Greater Noida Industrial Development Authority with respect to the
abovesaid immovable property.
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 not submitted its report despite of giving several opportunities but the appellant company has filed income tax
return for the assessment year from 2012-13 to 2017-18, which has been annexed with the application.
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 sufficient 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.