Mussorrie Estates Private Limited And Ors. vs Registrar Of Companies

Pradeep R. Sethi, Member (T)

The present appeal is filed under Section 248 & 252 of the Companies Act, 2013 (hereinafter referred to as Act) for restoration of the name of

Mussorrie Estates Private Limited (hereinafter referred to as Company) in the register of companies. Petitioner No. 1 is the company and the Board

Resolution authorising Ms. Sushila Tiwari, Director for filing of the petition is at Annexure P-2 of the appeal. Her affidavit verifying the contents of

the petition is at Page No. 15 of the appeal.

Petitioners No. 2 to 4 are stated to be shareholders of the company as per details in Form MGT-7 for annual general meeting held on 31.08.2012

(Annexure P-4 of the appeal). Their affidavits verifying the petition are at pages 17 to 25 of the appeal.

The company is stated to have CIN U74899DL1989PTC037351 and to be incorporated on 31.08.1989 and its registered address is stated to be

presently at 220/D-288/10/ Wadhwa Complex, Laxmi Nagar, Delhi-110092. Therefore, the jurisdiction lies with this Bench of the Tribunal.

It is stated to be that the authorised share capital of the 5,00,000 divided into 50,000/- equity shares of Rs. 10/- each and the issued subscribed and

paid up capital is at 2,75,450/- divided into 27,545/- equity shares of Rs. 10/- each. The copy of the memorandum of the association and articles of

association is at Annexure P-6 of the petition. The main objects include:

i. To carry on the business of immovable property, dealers, broker, builders, building contractors and estate agents.

It is stated that soon after incorporation, the Board of Directors started activities in pursuance and in accordance with the main objects as stated in

the memorandum of association and in furtherance of the objects, the company purchased a piece of land measuring 1155 square yards being part of

Ranbir Villa Estate also known as Kalsia Estate situated at Mussoorrie, Uttarakhand as part of the business project to develop and operate a hotel on

this land. A copy of the registered sale deed is stated to be enclosed as Annexure P-7 and also filed vide Diary Dated 05.03.2019.

It is submitted that the company could not implement the project due to non-tying up of financial resources; lack of expertise; Government

regulations restricting land use and banning construction activities in the city of Mussoorrie. It is stated that the Directors of the Company have all

these years been trying to formulate a suitable and viable business plan and in the year 2016, proposals from interested parties for joint development of

the land were received. It is however stated that negotiations were held but due to economic slow down, not much progress was achieved and

proposals from various parties are still under consideration of the Directors and the Shareholders and more over, the Government of Uttarakhand has

relaxed various regulations prohibiting construction in the cities of Mussoorrie.

It is submitted that in a unilateral move, the respondent Registrar of Companies, NCT of Delhi & Haryana (ROC) struck off the name of the

company under Section 248 of the Act from the register of the companies and published to this effect on MCA Portal vide ROC/DEL/248(5)/STK-

7/2879 dated 30.06.2017. The copy is stated to be attached as Annexure P-8 of the appeal and the name of the company appears at Serial No. 12914

thereof.

It is submitted that no show cause notice was served by the ROC on any of the petitioners and thus, the striking off is in violation of the provisions

of the Act and also against the principles of natural justice. It is further submitted that the company has been owner of 1155 square yards land situated

at Mussooriee, Uttarakhand, and in the event of winding up, this land or proceeds thereof would have been distributed among the shareholders

(Petitioners No. 2 to 4) in accordance with the provisions of the Act and great prejudice would be caused to the petitioners No. 2 to 4 inasmuch as

they have been deprived of their valuable right.

It has been prayed that the name of the company be restored in the register of the companies under the provisions of the Act.

Vide order dated 28.08.2018, the ROC and Income Tax Department were required to file reply within three weeks. The reply-cum affidavit of the

Deputy Registrar of the Company, NCT of Delhi & Haryana was filed by Diary No. 9991 dated 28.09.2018. It has been stated that the company filed

its last annual return and balance sheet for the Financial Year ended on 31.03.2012 & 31.03.2012 respectively and that the company was struck off

w.e.f. 7.06.2017 in terms of provisions of Section 248(1) of the Act read with Rule 7 of the Companies (Removal of Names of Companies from the

Register of Companies) Rules, 2016 because of the fact that as per the records of the office of the ROC, neither the company was carrying on any

operation for a period of two immediately preceding financial years or obtained the status of the dormant company under Section 455 of the Act. It

has been prayed that the company be directed to prove that it was carrying on business or was in operation and that it is just the name of the company

be restored to the register and the company be directed to file the financial statements upto date.

Despite opportunity given on a number of occasions the Income Tax Department did not file any reply.

We have carefully considered the submissions of the learned Authorized Representative for the appellant and the company Prosecutor and have

also perused the record. The relevant provisions under Section 252 (3) of the Act are reproduced as under:

“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 companiesâ€​.

The present appeal is filed by the company and the shareholders and within the period of twenty years from the date of publication of the notice of

striking off by the ROC from the register of companies. Therefore, the only issue requiring consideration is whether the company was at the time of

its name being struck off, carrying on business or in operation or it is otherwise just and reasonable that the name of the company be restored to the

register of the companies.

We note that the Financial statements of the company for financial years 2012-13 to 2016-17 have been filed at Annexure P-12 (Colly.) and

Annexure P-5 of the appeal. The financial statements do not show any revenue from operations. However, investment in land (Plot) of Rs. 1,31,605 is

being shown in the balance sheets from 31.03.2013 onwards. As already discussed above, the copy of the registered deed in respect of purchase of

the property by the company has been filed. It has been stated that the piece of land measuring 1155 square yards being part of Ranbir Villa Estate

also known as Kalsia Estate situated at Mussoorrie, Uttarakhand was purchased in 1989 as part of a business project to develop and operate a hotel

on the land. It is further stated that the project could not be implemented since financial resources could not be tied up; there was lack of expertise;

and government regulations restricted land usage and banned constructions activities in the city of Mussoorrie. It is stated that proposal from various

parties for joint development of the land were received as stated in the Director’s Report for 2016-17 and were under consideration of the

Directors and the Shareholders. One such proposal for development of resort at the land owned by the company is stated to be now received by

communication dated 24.08.2018 from Urmila Creations LLP, Lucknow (Page 5 of Diary No. 9921 dated 26.09.2018).

It has been submitted in affidavit filed by Diary No. 9921 dated 26.09.2018 that the balance sheet of the company for financial years 2012-13 to

2016-17 were duly prepared and audited and annual general meetings for these financial years were duly convened and held in accordance with the

provisions of the Act. It is further submitted that the balance sheet and annual returns for the aforesaid financial years could not be filed with the ROC

due to clerical oversight. It has been pleaded by the petitioners that the company has always been carrying on the business.

On a careful consideration, we note that even though the company was not having income from operations, land was purchased at Mussoorrie in

1989 and subsequent efforts were made for developing and operating a hotel on the land. These efforts did not achieve the desired results due to the

reasons brought out by the petitioner. However, the conclusion has to be that the company was carrying on business or in operation and that it is just

and equitable that the name of the company be restored to the register of the companies.

The ROC has not raised any objection to the revival of the company. Despite opportunities given, the Income Tax Department has not filed any

reply.

We therefore hold that the name of the company M/s. Mussorrie Estates Private Limited be restored to the register of the companies under the

provisions of Section 252(3) of the Act.

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 Companies is ordered subject to:

i. the Income Tax Department being at liberty to proceed against the company for non-filing/delayed filing of returns and for recovery of the demand,

if any

ii. subject to its filing with the ROC 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 ROC for the late filing of statutory returns,

iii. and also subject to payment of cost of Rs. 25,000/- to the Prime Minister’s Relief Fund. The name of the Company shall then, as a

consequence, stand restored to the Register 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.