M/S NOPANY Investments Pvt. Ltd. vs Registrar Of Companies And Ors.

Present appeal is filed by a shareholder M/s. Nopany Investments Private Limited, through its authorized representative Mr. Surajit Pyne vide

Board Resolution dated 19.03.2018 for revival of M/s. Acme Papers Limited (for brevity the ‘Company’), under Section 252 of the Companies

Act, 2013 (for brevity ‘the Act’) against the order of striking off the name of the company M/s. Acme Papers Limited 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.

M/s. Acne Papers Limited (hereinafter referred to as the ‘Company’) was incorporated on 24.11.1975 as a Public Limited company, limited

by shares under the provisions of the Companies Act, 1956 having CIN U21010DL1975PLC007983.

The company is having its registered office at Herald House, 2nd Floor, 5A, Bahadur Shah Zafar Marg, New Delhi.

The authorized share capital of the Company is Rs. 25,00,000/- divided into 25,000 9.5% Redeemable Preference Shares of Rs. 100/- each and Rs.

10,00,000/-divided into 10,000 9.5% Irredeemable Preference Shares of Rs. 100/- each and Rs.40,00,000/- divided into 40,000 Equity Shares of

Rs.100/- each. The issued, subscribed and paid up Equity share capital of the Company is Rs. 19,91,000/- divided into 19,910 9.5% Redeemable

Preference Shares of Rs.100/- each and Rs. 10,00,000/-divided into 10,000 9.5% Irredeemable Preference Shares of Rs.100/- each and Rs.

24,21,900/- divided into 24,219 Equity Shares of Rs.100/- each.

The main objects of the company are:

i. To carry on the business of manufacture of and dealers in all kinds and classes of paper, board and pulp including writing paper, printing paper,

absorbent paper, newspaper paper, wrapping paper, tissue paper, cover paper, blotting filter paper, antique paper, ivory- finish paper, coated paper, art

paper, bank or bond paper, brown or buff paper, bible paper, cartridge paper, cloth-lined paper, azure-laid and woven paper, cream-laid, grease-proof

paper, gummed paper, handmade paper, parchment paper, drawing paper, kraft paper, manila paper, envelope paper, tracing paper, paste board,

cardboard, straw board, leather board, mill-board, visiting cards etc. soda pulp, mechanical pulp, sulphite pulp, semi -chemical pulp etc and all kinds of

articles in the manufacture of which in any form paper, board or pulp is used and also to deal in or manufacture any other articles or things of a

character similar or analogous to the foregoing or any of them or connected therewith. 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 for

years 2011-2012 to 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 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 Appellant has brought forward the following facts about it being in operation and functional during the period of striking off:

i. The copy of Share Certificate issued by Acme Papers Ltd. in favour of M/s Nopany Investments Pvt. Ltd. bearing Certificate no. 05 dated

20.02.2015 which is valid up to 06.03.2020.

ii. The copy of financial statements of the company Acme Papers Ltd. for the financial years 2012-2013 to 2016-2017. The Balance Sheet as on

31.03.2017 reflects fixed assets of Rs. 11,47,94,813/- and cash and cash equivalents of Rs. 2,18,442.

iii. The copy of Bank Statement of Andhra Bank, from 01.09.2016 to 31.03.2018, reflecting various transactions done by the company during the

period of striking off and having closing balance of Rs. 59,079/- as on 31.03.2018.

iv. The copies of Income Tax Returns filed for the assessment years 2015-16 upto 2017-18. The tax paid for assessment year 2017-18 is NIL.

v. The copy of intimation dated 23.12.2017 from office of tehsildar Singhor confirming about the boundary demarcations of land owned by M/s Acme

Papers Ltd., under various survey numbers along with receipt of amount paid by the company.

vi. The land record papers being Form P-II (Khasra) dated 24.04.2015 reflecting various plots of different hectares in the name of Acme Papers Ltd.

is also annexed.

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 any report inspite of giving various opportunities.

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 mainly the possession of immovable property by the company and further efforts of investment to be made

in immovable property by the company and that it has been in operation during striking off 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.