M/S Open Kitchen Hospitality Services (P) Ltd. And Ors. vs Registrar Of Companies

The present appeal is filed by the company M/s Open Kitchen Hospitality Services Private Limited (for brevity the ‘Company’), through its

authorized signatories Mr. Manjeet Singh Ajmani and Mr. Ajit Singh Ajmani vide Board resolution dated 03.03.2018, 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.

It is stated that the company is incorporated as a Private Limited Company with the Registrar of Companies, NCT of Delhi and Haryana on

01.04.2009 under the Companies Act, 1956 with CIN U55101DL2009PTC189056.

The company is having its registered office at 25, Bank Enclave, 2nd Floor, Rajouri Garden, New Delhi- 110027.

The Authorized Share Capital of the company is Rs. 5,00,000/- divided into 50,000 equity shares of Rs.10 each. The issued, subscribed and paid up

share capital of the Company is Rs. 4,50,000/- divided into 45,000 equity shares of Rs.10 each.

The main objects of the company are:

i. To carry on in India or elsewhere the business of Hotels, Motels, Restaurants, Cafe, Beer House refreshment room and lodging.

ii. To provide consultancy services, undertake management contracts in India or abroad in respect to any type of Hotel and Hospitality services.

And other main objects.

As per the notice of non-compliance of provision of the Companies Act, 2013 in respect to filing of annual returns and financial statements for the

financial years 2012-13 upto 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:

a) The copy of Bank Statement of the company of State Bank of India for the period 01.04.2015 to 01.05.2017 reflecting closing balance of Rs.

71,174/- as on 01.05.2017 showing various transaction details of the company, claiming the status of company as active during the period of striking

off.

b) The copy of Bank Statement of the company of Axis Bank for the period 01.04.2016 to 31.03.2017 reflecting closing balance of Rs. 7,72,165/- as

on 31.03.2017 showing various transaction details of the company, claiming the status of company as active during the period of striking off.

c) The copies of financial statements of the company for the financial years from 31.03.2016 to 31.03.2017. The Balance Sheet as on 31.03.2017

reflects Tangible assets of Rs. 4,09,241/- and Revenue from Operations of Rs. 3,43,33,171/-. It also reflects Employee Benefit expenses of Rs.

35,71,890/-

d) The copies of Income Tax Returns filed for the assessment years 2013-14 to 2017- 2018. The taxes paid by the company for A.Y. 2017-18 is

Rs.1,50,930/-.

e) The copy of VAT Return in Form DVAT 56 having TIN 07460427407 for the period from 01.04.2016 to 30.06.2016 showing tax payable of Rs.

5,41,464/-

f) The copies of GST Return in form GSTR- 1 and GSTR-3B for the month of July to September in financial year 2017-18 having GSTIN

07AABC01775C1ZP.

g) The copy of Lease deed dated 30.11.2012 executed by Sh. Naresh Deswal in favour of Verve Lounge Bar (A unit of Open Kitchen Hospitality

Services Pvt. Ltd) through its director Sh. Santosh Jindal, of property situated at Muncipal No.28, Khastra No. 756/620/330, Hauz Khas Village, New

Delhi for lease rent of Rs. 9,60,000/-

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 submitted in its report that there is no outstanding demand against the Assesse 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:

a. That the company at the time of its name was struck off was carrying on business.

b. Or it was in operation

c. Or it is otherwise just that the name of the company be restored on the register.

The Appellants have submitted sufficient evidence that it has been in operation since incorporation and 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 the name of the company is hereby declared illegal and

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.