Muktistar Constructions Private Limited Through Its Director Mr. Jitendra Vishwanath Gaikwad vs Registrar Of Companies

V.P. Singh, Member

This Company Petition is filed by M/s. Muktistar Constructions Private Limited, through its director Mr. Jitendra Vishwanath Gaikwad, under Section 252 of the Companies Act, 2013 seeking relief against the respondent, among other things, to restore the name of the Company in the Register of Companies maintained by the Registrar of Companies, Mumbai.

The Appellant submits that the company was incorporated on 29.03.2013 under the Companies Act, 1956/2013 vide CIN U45400MH2013PTC241484, as a private company limited by shares with the Registrar of Companies, Mumbai, Maharashtra.

The Appellant submits that the main object of the Petitioner company is the construction of building and redevelopment of the properties in the area of Charkop at Kandivali-West, Mumbai.

The grievance of the Appellant is that the Respondent, Registrar of Companies struck off the name of Company from the Register of Companies maintained by it, due to defaults in statutory compliances, namely, failure to file Financial Statements and Annual Returns for the Financial Years ended on 31.3.2016 to 31.3.2018, i.e. for three years. It is further stated by the Appellant that due to strike-off of the name of the company, the director identification number of the Directors of the Appellant Company is also disqualified under section 164(2) of the Companies Act, 2013.

Applicant contends that the project is still under progress, therefore, petitioner Company has not generated any revenue in the company, because the projects of the company were subject to approval form Government Authority. Hence, the Appellant Company is waiting for the approval from the concerned authorities; once it is received the company will be able to start the projects and start with their construction and generate revenue and the Appellant company

Consequently, the Applicant Company and its Directors are considered as officer in default of non-compliance of Section 92 and Section 137 of the Companies Act, 2013 read along with sub-rule (1) of Rule 12 of the Companies (Accounts) Rules, 2014 for not filing of E-Form AOC-4 and E-Form MGT-7 for three financial years 2015-2016, 2016-2017 & 2017-2018. The Respondent published a list of Companies in Form STK-5 dated 19.7.2018 which have not commenced its business within a year of incorporation or have not been carrying on any business or operation for a period of two immediately preceding financial years or not obtained the status of Dormant by making an application in Section 455 of the Companies Act, 2013. Further on 12.9.2018 the Respondent Published the Form STK-7 and struck off the name of the company claiming that the company is not carrying on any operation for a period of immediately preceding two years. The respondent by its Order No. ROC-MUM/Section 248/2ndDrive/STK-7/7254 dated 12.9.2018 struck off the name of the company from its Register of Companies for not receiving any representation from the Company and its Directors.

The Appellant submits that the account of the Appellant Company was prepared and audited and that the company had engaged the services and appointed consultant to perform the task of filing the returns with the office of the Registrar of Companies. However, the person appointed for filing returns could not do so with Registrar due to some technical difficulty and did not reveal this fact to the Directors of the Appellant Company. Appellant states that the Petitioner company has a Trademark registered on its name and hence the company and the shareholders would suffer irreparable loss and hardship if the name of the Company is not restored. It is further submitted that the object of this petition is to revive the company and remove the disqualification of the directors of the company, if any and desire to file the overdue returns and comply with the provisions of the Companies Act, 2013.

The Petitioner Company has enclosed the audited accounts for the Financial years 2015-16 to 2017-18, copies of Bank Statement of ICICI Bank, Charkop Branch for the period 01.1.2018 to 17.01.2019, copies of Acknowledgement of Income-tax Returns filed for A.Y. 2016-2017, 2017-2018 and 2018-2019.

The Petitioner also states that the company has been active since incorporation and has maintained all the Statutory Registers and Records as prescribed under Companies Act, 1956/2013, and the Company has meticulously made compliance of various statutory provisions and has never defaulted in payment of statutory dues, payment to its creditors and employees however inadvertently and unintentionally, defaulted in filing Audited Financial Statement and Annual Returns for the Financial Years ended 2015-16 to 2017-18 with the Respondent.

As per the direction is given by this Bench on 30.4.2019, the Appellant has served notice on the Income-tax Department on 14.6.2019, and the Appellant has filed Affidavit of Service, and till date, no reply/objection has been received from Income Tax Department.

The Respondent, ROC filed its Affidavit in reply explaining the following sequence leading to the striking of the name of the company:

(a) The Respondent side issued Notice in Form STK-1 to the company and its directors informing the intention of the Registrar to strike off the name of the company and requesting them to submit a cause contrary to the said action within 30 days.

(b) Further, as required under Rule 7 of the Companies (Removal of Name) Rules, the name of the Company was published on the website maintained by the Ministry vide STK-5 dated 19.07.2018 and issued notices not only to the Company and the Directors of the company, but also to all stakeholders concerned so as to receive their objections to the said intention of the Registrar to remove the name of the company.

(c) In addition to the publication of the name of the company on the website of the Ministry, the name was also published in the official gazette and in leading English newspaper "Times of India" and a widely circulated vernacular language in Marathi newspaper "Maharashtra Times" on 21.07.2018.

(d) It is submitted that the representation received by this office against the strike-off action is 'None'.

(e) Respondent further submits that in the absence of any representation against the proposed strike-off action, the Registrar struck off the name of the company on 11.09.2018 and the dissolution order was published on the website of the Ministry vide STK-7 on 12.09.2018.

Upon the perusal of the audited accounts submitted by the Petitioner Company, it is observed that Company has Long term borrowings of Rs. 65.17 Lakh and Inventories as Work in Progress of Rs. 64.99 Lakh, for the Financial Year 2017-2018. Similarly, the Company has Long term borrowings of Rs. 63.57 Lakh and Inventories as Work in Progress of Rs. 63.21 Lakh, for the Financial Year 2016-2017. The Company has produced documents to show its plans redevelopment of Mumbai City into Smart City with MHADA.

On hearing the submissions of the Professional appearing on behalf of Appellant, perusal of the Affidavit in Reply of Registrar of Companies, Mumbai, audited accounts submitted by the Appellant Company, this Bench has observed that the Company has remained operational and functional from the financial years 2015-16 to 2017-18, the Company has Business Plans as well as assets as work in progress. The Respondent struck off the name of the Company from the Register of Companies maintained by it believing that the Petitioner company was not carrying on any business or was not in operation as it did not file its Annual Returns & Balance Sheets from the year 2015-16, which contravene the provisions of Section 92 and 137 of Companies Act, 2013. However, as observed above, the Company is actively carrying on business and is operational. Therefore, unless the relief sought is granted to the Company, grave hardship and irreparable loss shall be caused to the said Company and its members.

Given the above facts and circumstances, we are satisfied that the prayer sought by the Petitioner company deserves to be allowed.

ORDER

Appeal bearing CP No. 295/252/2019 filed by Appellant Muktistar Constructions Private Limited, through its Director Mr. Jitendra Vishwanath Gaikwad, seeking restoration of the company's name in the Register of the Companies maintained by the Registrar of Companies, Mumbai is allowed on the following terms.

The Respondent is directed to restore the name of the Petitioner company in the Register of Companies subject to payment of a sum of Rs. 1,00,000/- (Rupees One Lac only) as cost payable in the account of "Prime Minister's National Relief Fund" within 10 days from the date of receipt of copy of this order.

The company shall file all its pending financial statements and Annual Returns with all the applicable fees and late fees with the Respondent within 30 days from the date of receipt of a copy of this order, failing which, this order will stand vacated automatically.