M/S Russi Fisheries Pvt. Ltd. vs Registrar Of Companies And Ors.

Present appeal is filed by the company, M/s Russi Fisheries Pvt. Ltd.(for brevity the ‘Company’), through its director Mr. Dhir Singh vide

Board resolution dated 01.03.2018 , under Section 252 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 27.04.2017 vide notification no. ROC/DEL/248/STK-5/721 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 30.11.1984 having CIN U05002DL1984PTC019470.

The company is having its registered office at 104, Malcha Marg, South Delhi, New Delhi- 110021.

Authorized share capital of the Company is Rs. 2,00,000/-divided into 20000 equity shares of Rs. 10/- each.

The main objects of the company are:

i. To carry on in India or elsewhere the business of fishing or allied activities, the catching, carting processing, pre serving, storing and marketing of

fish or purchase of materials and equipments in connection 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 2006-2007 upto 2017-2018, 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 balance sheets from 31.03.2015 to 30.09.2018, reflecting Tangible assets of Rs. 2,31,447/- and Revenue from operations of Rs.

6,50,220/-. It also reflects Employee benefits expenses of Rs. 3,86,500/-

ii. The copy of Sale deed dated 30.01.1985 executed by Sh. Anil Kishore Seth,owner of agricultural land in favour of the appellant company M/s Russi

Fisheries Private Limited, of property of total area 40 kanaal 19 marlaa village- tether sub tehsil ,sohna for total consideration of Rs. 40,000/-

iii. The copies of photographs of Ponds and Buildings at Russi Fisheries Pvt. Ltd is also annexed with the appeal.

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:

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 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. 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.