M/s. Umakon Developers Private Limited vs Registrar Of Companies

L. N. Gupta, Member (T)

M/s. Umakon Developers Private Limited (hereinafter referred to as the 'Appellant Company') represented through its Director Sh.Vinay Kumar has preferred the present Appeal invoking the provision of Section 252(3) of the Companies Act, 2013 for restoration of the name of the Company in the register of the Registrar of Companies, NCT of Delhi and Haryana ("RoC").

As per the averments M/s. Umakon Developers Private Limited was incorporated on 15.12.2006 with CIN U45200DL2006PTC156613 under the erstwhile Companies Act, 1956, having its registered office at 1014 Naurang House 21 K.G. Marg, New Delhi-110001, which is within the jurisdiction of this Tribunal.

That  as  per  the  Memorandum  of  Association  annexed,  the Appellant Company has the following main objects :

"(A) The main objects to be pursued by the Company on its incorporation are:-

To engage in infrastructure development, Real Estate Promoters, Developers & Project Management Association including civil, mechanical, electrical, and all other types erection, commissioning projects, project trading as well as consultant for execution of projects on turnkey basis for equipment of industrial, domestic and other purposes......."etc.

It is submitted by the Appellant that the RoC Delhi and Haryana had struck off the Appellant Company's name from the Register due to defaults  in  statutory  compliances,  namely  failure  to  file  Financial Statements  &  Annual  Returns  for  the  year  2015-16  &  2016-17.

Consequently, the RoC initiated proceedings under Section 248 of the Companies Act 2013 and struck off the name of the Appellant Company from  its  Register  vide  STK-7  Notice  No.  ROC/DELHI/248(5)/STK-7/4865  dated  08.08.2018. The  name of  the  Appellant  Company appeared at serial no. 22412 of the list of companies, whose names were stuck off due to default in statutory compliances.

The Appellant has submitted that it has certain assets which necessitate  restoration  of  the  Appellant  Company.  To  support  its contention, the Appellant Company has placed the following documents on record :

I. Copy of the Sale Deed registered on 01.02.2012 depicting Agricultural Land admeasuring 0.0837 hectare at village Mukrabpur Palheda Khasra No. 167m, Uttar Pradesh in name of the Appellant Company.

II. Copy of the Property Development Agreement dated 21.05.2015 entered between Sh. Nishant Gahlot of Meerut,

III. Copy of the Balance Sheets for the Financial Years from 2012-13, 2013-14 and 2014-15.

IV. Copy of the Bank statement from 03.04.2014 to 27.03.2015 issued by Axis Bank.

V. Copy of Income Tax Return for the Assessment years 2014-15 and 2015-16.

That the RoC has filed its reply dated 11.09.2021, and averred the following:

"That the Respondent most respectfully submits that the action of striking off of the present Company was legal and justified and was the result of the operation of the law, as the company was not carrying on any operations for a period of two immediately preceding financial years (as indicated by non-filing of the financial statements of the Company for two or more years)..."

That the Income  Tax Department has filed its report dated 11.09.2021, wherein they have submitted that they have no objection if the name of the company is restored in the register of RoC.

We have heard the Appellant, ROC and IT department and gone through the Appeal, replies and documents placed on record. We observe that the main contention of the Appellant Company is that it is the owner of certain land registered in its name. It has placed a copy of the registered Sale Deed and copy of Property Development Agreement, basing on which it is seeking restoration of its name in the register of RoC. In the circumstances, we refer to the Judgement of Hon'ble High Court of Guwahati in the matter of Fellpact Private Limited & Ors. Vs The Registrar of Companies & Ors. Co. Pet. 24 of 2012 dated 05.06.2017, which is quoted below :

"9. In the present case in hand, as mentioned hereinbefore, the petitioner No.1 company is the owner of land admeasuring 10 bigha - 4.kathas-19 lechas at Bongaigain District. Hence, this appears to be a fit case wherein the court may take the judicial notice of the ever rising market value of land. In this regard, I find support from the case of Rattan Arya V. State of Tamil Nadu, AIR 1986 SC 1444: (1986) 3 SCC 385. The ownership of such a big estate is indicative of the fact that if there is no owner of any land, there is every likelihood of the said land will waste away by encroachment or otherwise or it will become a den for anti-social activities. Fraudulent sale of land in our Country is not uncommon, which would be revealed from the perusal of innumerable case reports where land involved in the suit or proceeding was illegally and fraudulently transferred."

"15. For all these reasons, I am of the considered opinion that this application deserves to be allowed and consequently, the name of the Petitioner No.1 Company, i.e. Felpact Private Limited is ordered to be restored to its original status, as if the name of the Company had not been struck off."

The provisions pertaining to restoration of the name of the Company are provided in Section 252(3) of the Companies Act, 2013, which, inter alia, include that if a Company is carrying out its business or in operation or otherwise it is just that the name of the company be restored, this Tribunal can order the RoC to restore the name of the company in the Register of Companies.

That in terms of the judgement Supra, we find that it would be just and fair to allow restoration of the name of the Appellant Company in the Register of RoC.

In view of the above, the Appeal is allowed subject to payment of costs of Rs. 25,000 (Twenty-five thousand) only to the Prime Minister's Relief Fund as Rs. 25,000 (Twenty-five thousand) to the Ministry  of  Corporate  Affairs  (MCA),  the  proof  of  which  shall  be furnished by the Appellant to the Court Officer/Registry of this Tribunal within 07 days. The Registrar and Court Officer of this Tribunal shall maintain the information about such deposits in a separate register.

The restoration of the Appellant Company's name in the Register of ROC will be subject to their filing of all outstanding documents for the defaulting years as required by law and completion of all formalities, including payment of any late fee or other charges which are leviable by the respondents for the late filing of statutory returns. The name of the Appellant Company shall then stand restored in the Register of the Registrar of Companies (RoC), as if the name of the Appellant Company had not been struck off.

The direction for freezing the Bank Account(s) of the Appellant Company, if on this ground, shall consequently be also set aside immediately to enable the Company carry to out its business operation. Compliance of this order for restoration shall be made by the Respondent with all its consequential effects within one week of all compliances made by the Appellant.

Let the copy of the Order be served to the Parties.