Nabadurga Builders Private Limited vs Registrar Of Companies

Satya Ranjan Prasad, Member (Technical)

 This application is filed under Section 252 (3) of the Companies Act, 2013 by one of the Directors/Shareholders,S mt. Binodini Lenka, of the

Struck Off Company by name M/s. NABADURGA BUILDERS PRIVATE LIMIT. ETDhe Company was incorporated on 22nd March, 2011

bearing CIN No.: U452010R2011PTC013344, having its Registered Office AT: -Village- Samraipur (Prachinagar), P.O- Gelpur, P.S- Bhadrak

(Rural), Bhadrak- 756 181, Odisha. The Registrar of Companies, Odisha, vide Order dated 21.06.2017 has Struck Off the name of the Company

under Section 248 (1) (c) of the Companies Act, 2013 and Rule 9 of the Companies (Removal of Names of Companies from the Register of

Companies) Rules, 2016, as the Company was not filing its Statutory Returns i.e., Balance Sheets and Annual Returns since the Financial Year ended

on 2014 onwards. The Applicant has filed this application under Section 252 (3) of the Companies Act, 2013 with a prayer to direct ROC, Odisha to

revoke the impugned Order.

 As per the averments, the Company is a Private Limited Company, limited by shares under the provisions of the Companies Act, 1956. The

authorised share capital of the Company is ?25,00,000/- (Rupees Twenty-Five Lakh Only) divided into 25,000 (twenty-five thousand) Equity Shares of

?100/- (Rupees one hundred only) each. The issued, subscribed and paid-up Equity Share capital of the Company is ? 10,00,000/- (Rupees ten lakh

only) divided into 10,000 (ten thousand) Equity Shares of ? 100/- (Rupees one hundred only) each. Before its name was struck off, the Company was

managed by its two Directors namely, Mr. Prafulla Kumar Lenka (DIN: 03333385) and Ms. Binodini Lenka (DIN: 03369428 )to carry out its

objectives.

The main objects of the company are: -

(i) To carry on the business of builders, erectors, construction of building, houses, apartments, structures, or residential, office, industrial, institutional, or commercial

or developers of housing schemes, townships, holidays resorts, hotels, motels and in particular preparing of building sites, constructing, reconstructing, erecting,

altering, improving, enlarging, developing, decorating, furnishing and maintaining of structures, flats, houses, factories, shops, offices, garages, ware houses,

buildings works, workshops, hospitals nursing homes, clinics, godowns, and other commercial, educational purposes, and conveniences, to purposes for

development investment or for resale lands, houses, buildings, structures and other commercial purposes, and conveniences, to purposes for development

investment or for resale lands, houses, buildings, structures, and other properties of any nature and any interest therein and purchases, sell and deal in free hold and

lease hold land and to make advances upon the security of lands, houses, structures and other property and to purchase, sell, lease, hire purchase, exchange or

otherwise deal in land and house property whether real or personal and to turn the same into account as may seem expedient in any part of the world, etc.

 The Applicant states that the Registrar of Companies, Odisha i.e., respondent herein, struck off the petitioner Company’s name of the

Register due to defaults in statutory compliances, namely, failure to file Financial Statements and Annual Returns for the financial year 2013-14

onwards. Consequently, the Registrar of Companies initiated proceedings under Section 248 of the Companies Act, 2013 for the purpose of striking

off the name of the company of the Register maintained by them.

The Applicant states that the Financial Statements were prepared on time and were approved by the shareholders and powers were delegated to

the Directors of the Company for further filing. However, due to inadvertence on the part of the Directors, the said statutory reports could not be

filed.

 In order to sustain the said plea, the applicant has placed before this Tribunal, the following evidence: -

(i) Copy of Memorandum and Articles of Association;

(ii) Copy of Balance Sheet and Audit Reports;

(iii) Copy of the Notice under Section 248(2) of the Companies Act, 2013;

(iv) Bank Statements;

(v) Â A copy of print out of Company Master Date downloaded from MCA Portal;

 Notice of this application was served to the Registrar of Companies, Odisha (ROC). The respondent states mainly to the following effect: -

“The Company was not filing its Statutory Returns i.e. Balance Sheets and Annual Returns since the Financial year ended 31.03.2014, hence, the Registrar

having reasonable cause to believe that the above named Company is not carrying on any business or in operation for a period immediately preceding last

Financial Years and has not made any application within such period for obtaining the status of a Dormant Company under Section 455 of the Companies Act,

2013 and issued Notice in Form No. STK - 1 under Section 248(l)(c) of the Companies Act, 2013 to the Company enquiring whether the said Company was

carrying on any business or was in operation, but no reply to the said Show Cause Notice was received by this office. Subsequently this office published in the

Official Gazette and Newspaper for the information of the general public regarding Strike Off the name of the said company if Form No STK-5/5A. Finally, after

the expiry of the time mentioned in the above notice the Registrar Struck Off the name of aforesaid Company from his Register and published the same inFormNo.

STK-7 inthe Official Gazette dated 22.07.2017 and on the publication of such Notice in the Official Gazette, the Company stood dissolved on and from

21.06.2017.

The undertaking made by the petitioner in its appeal /petition may be considered on its merit on the basis of documentary evidences produced by the petitioner in

support of the submission made therein. Further, the petitioner may be put to strict proof of the contention made therein that at the time of its ""Striking Offâ€, the

Company was in operation.

The Hon’ble NCLT, Cuttack Bench may consider the application/petition preferred under Section 252 of the Companies Act, 2013 on its own merits as

deemed fit and proper. â€​

Section 252 (3) of the Companies Act, 2013 confers on this Tribunal powers to order to restore the name of the Company in the Register

maintained, provided such application is filed by (i) the Company or (ii) by any Member or (iii) any creditor or (iv) any workmen of the Company

within 20 years from the date of publication of the notices under Section 248 (5) in Official Gazette about striking off of the name of such Company

provided further that it is seen from the material on record that at the time of its name being struck off, the Company was doing its business or

carrying its operation.

We have perused the available records. We also heard the Learned Company Secretary appearing for the applicant.

In this case, the applicant produced on record the copy of Audited Annual Accounts of the Company for the period from 31.03.2014 up to

31.03.2020. As per the reports of the Profit and Loss accounts of the Company, it is evident that during the defaulting years the Company has not

generated any revenue from its operations or from the business activities for which it was incorporated.

It is seen from the available records that the Company is maintaining bank account with State Bank of India with Account No. 31938038734.

Vide supplementary affidavit the Applicant has submitted a copy of sale deed executed on 01.11.2013, indicating that the Company had purchased

some land admeasuring around 4.290 acres (Khata No. 293 and Chak Plot Bearing No. - 1377 of Mouza: Jhartarang) for a consideration of ?

1,07,25,000/- (Rs. one crore seven lakh and twenty-five thousand only).

ROC, Odisha has not objected to this application for restoration of the name of the company. On perusal of the application, and after hearing to

the Ld. Authorised representative, we are of the view that this petition deserves sympathetic consideration, since the company has valuable land. In

the facts and circumstances of the case we are satisfied that the name of the company should be restored to the register. Accordingly, we are inclined

to ALLOW this Application. We hereby direct the Registrar of Companies, Odisha to restore the Company's name in the Register of Companies by

following Order.

ORDER

i) Â The Registrar of Companies, Odisha the respondent herein, is ordered to restore the original status of the Applicant Company i.e., NABADURGA BUILDERS

PRIVATE LIMITED, as if the name of the company has not been struck off from the Register of Companies with resultant and consequential actions like changing

status of Company from “Strike off’ to “Activeâ€​.

ii)  The Applicant Company is directed to file all pending statutory document(s) including Annual Accounts and Annual Returns for the Financial Years 2013¬14

onwards along with prescribed fees/ additional fee/fine as decided by ROC within 30-days from the date on which its name is restored on the Register of Companies

by the ROC subject to fees/late fees, if any.

iii) Â The Company's representative, who has filed the Company Appeal, is directed to personally ensure compliance of this Order.

iv) Â The restoration of the Company's name is also subject to the payment of cost of 80,000/- (Rupees Eighty Thousand only) through online payment in

www.mca.gov.in under miscellaneous fee by mentioning particulars as ""payment of cost for revival of Company.â€​

v) Â The applicant shall file a certified copy of this Order with ROC, Odisha within 30 days of the receipt of this Order.

vi) Â On such delivery and after duly complying with above directions, the Registrar of Companies, Odisha is directed to, on office name and seal, publish the Order

in the Official Gazette;

vii) This Order is confined to the violations which ultimately led to the impugned action of striking of the Company, and it will not come in the way of ROC, Odisha to

take appropriate action(s) in accordance with law, other violations/offences, if any, committed by the applicant company prior to or during the striking off the

Company.

viii) Â CP No. 250/CB/2020 is disposed of accordingly.

ix) Â The Registry is directed to send e-mail copies of the order forthwith to all the parties inclusive of the Counsel

x) Urgent certified copy of this Order, if applied for, be issued upon compliance with all requisite formalities.