M/s Sharad Enterprises Private Limited vs Registrar Of Companies And Anr.

This appeal is filed by the company, M/s Sharad Enterprises Private Limited (for brevity the ‘Company’), through its Director, Mrs.

Maninder Bedi 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 28.10.1981 having CIN U24139DL1981PTC012557, and having its registered office at C-160, Okhla Industrial Area, Phase-I,

New Delhi.

Authorized share capital of the Company is Rs.60,00,000/- divided into 600,000 equity shares of Rs.10/- each and issued, subscribed and paid up

share capital of the Company is Rs.5,499,600/- divided into 5,49,960 equity shares of Rs.10/- each.

The main objects of the company are:

i. To carry on the business of manufacturers, dealers, exporters and importers of all kinds of PVC, plastic, rigid pipes and fittings. 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 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 equivalents of Rs. 1,62,900/- and Loss of Rs. 14,046/-.

ii. The copy of the winding up petition filed by ICICI Bank Limited against the appellant company before the Hon’ble High Court of Delhi being

Company Petition no. 231/2016 annexed with the appeal along with the order dated 23.08.2017, which is still pending consideration.

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 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 the assessee has not filed income tax return from the year 2013-14 to till date and

further submitted 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.

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. Further it is seen that due to pending aforesaid litigation, the survival and functioning of the

company was jeopardized. It is established from various judgements that pending litigations can be considered as valid and just reason to revive the

company as cited in order of the Honourable High Court of Delhi in Company Petition 406/2009 dated 04.06.2010; Honourable High Court of

Guwahati in Company Petition 24/2012 dated 05.06.2017; order of Honourable High Court of Delhi in Company Petition No. 200 of 2011 dated

08.02.2012, and order of Honourable High Court of Delhi in Company Petition No. 185/2008 dated 21.04.2010, which held as under:

“When a litigation is pending by or against a company, it is only proper that its name be restored to the Register to enable the matter to

be carried to its logical conclusionâ€​

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

The Appellant have submitted only evidence of pending litigation 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 to enable the company to defend in the litigation pending, 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.