Naagar Developers Pvt. Ltd. vs Registrar Of Companies

Ina Malhotra, J

This Appeal has been filed by Naagar Developers Private Limited CIN: U70109DL2009PTC194635, invoking the provision of section 252 of the

Companies Act, 2013 for restoration of the name of the appellant company in the register maintained by the Registrar of Companies, NCT of Delhi

and Haryana.

As per the averments Naagar Developers Private Limited was incorporated on 24.09.2009 and has its registered office at 1/7093, Gali No-4, Shivaji

Park, New Delhi- 110032 within the jurisdiction of this Tribunal. The main object of Company is to carry on the business of Construction.

A sweeping action was initiated by the RoC at the instance of MCA in striking of the names of several Companies who had failed to file their

Statutory Returns. The appellant had failed to file its Annual Returns and Financial Statements after the Financial Year Ending 31.03.2011 thereby

giving rise to the surmise that the business of the company was not in operation. Consequently, its name was struck off by the Respondent from the

Register of Companies under Section 248 of the Companies Act, 2013, upon taking steps in accordance with law and issuing a notification in the

Official Gazette. The names of the affected companies were posted on its website.

The appellant company admits its default in carrying out the statutory compliances but submits that the same was due to lack of professional

guidance, inadvertence & oversight.

In order to corroborate its business operations the petitioner has placed before us the following evidence:

I. Copy of Audited Balance Sheet of the appellant company reflecting revenue from operation for the years ending 31st March 2016 as Rs.

23,50,000/-. The Balance Sheet also reflects Tangible Assets worth Rs. 2,04,86,482/-. The appellant company has availed loans from Directors &

Relatives as well as advances from its customers.

II. Copy of Bank Statement issued by ICICI Bank showing various business transactions over the previous year.

III. Copy of Sale Deed dated 04.06.2014 executed in favour of the the appellant company.

IV. Copy of ITR filed prior to impugned action.

The provisions pertaining to restoration of the name of the company has been provided in Section 252 of the Companies Act, 2013 which includes

that if in the opinion of the Tribunal it is considered just and equitable to restore the name of the company in the Register of Companies, it may direct

the RoC to restore the name in its Register.

The case of the appellant is covered by a catena of judgments where restoration has been duly allowed. As per the law laid down, a chance should

be given to the company, its members and creditors to revive the company, giving them the opportunity of carrying on the business if the court is

satisfied that such restoration is necessary in the interest of justice.

A perusal of the documents referred to in paragraph 5 above, reflects that the appellant has been in business and has been generating revenue from

operations, besides having certain Assets and liabilities which necessitates restoration of its name in the Register of Companies . The assumption of

RoC that the company was not in operation was merely on grounds of non-filing of the Statutory Returns. The Act itself provides for redressal of

these defaults. A step as stringent as what has been taken at least requires an opportunity to the appellant to take remedial measures. Merely to

disallow restoration on grounds of its failure to file annual returns would neither be just nor equitable. As per several decisions of various Courts it

should only be in exceptional circumstances that Courts should refuse restoration where the company has been struck off for its failure to file annual

return as that would be excessive or inappropriate penalty for that oversight.

Accordingly, the petition is allowed subject to payment of costs of Rs. 25,000/- to the Prime Minister Relief Fund. The restoration of the petitioner

company’s name in the Register will be subject to their filing 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 respondent for the late filing of statutory returns. The

name of the petitioner company shall then stand restored in the Register of the Registrar of Companies (RoC), as if its name of the 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 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 compliance by the appellant.

The petition is disposed of accordingly.

Let the copy of the order be served to the parties.