Naresh Kumar And Anr. vs Registrar Of Companies And Ors.

This appeal is filed by the erstwhile directors of the company, M/s A.N. Realty Private Limited (for brevity the 'Company') under Section 252(1)

read with section 248 of the Companies Act, 2013 (for brevity the Act') seeking restoration of the name of the company against the order of striking

off the name of the company passed by the respondent under section 248 (1) of the Act read with Rule 7 of Companies (Removal of Names of

Companies from the Register of Companies) Rules, 2016 published on 27.04.2017 vide notification no. ROC-DELHI/248/STK-5/721 by Registrar of

Companies, the respondent herein.

The company was incorporated as a Private Limited Company under the provision of Companies Act, 1956 by the Registrar of Companies,

Ministry of Corporate Affairs on 17/11/2009 having CIN U70200DL2009P1C196056. The company has changed its name via certificate of

incorporation from M/s Naresh Realtors Private Limited to M/s A.N Realty Private Limited as on 22.03.2012.

The company's registered office is located at KH no 31/25/2, 30/21/1, Village Kair, New Delhi, South West -110043.

Authorized share capital of the Company is Rs.10,00,000/- divided into 1,00,000 equity shares of Rs.10/- each and issued, subscribed and paid up

share capital of the Company is Rs.2,00,000/- divided into 20,000 equity shares of Rs.10/- each.

The main objects of the company are:

i. To carry on the business of colonizers for the purpose of purchase, take on lease, exchange or otherwise acquire any land, develop the same, cut

plots and provide facilities of drainage, electric supply, telephone, approach roads, street lighting, sewerage, water supply, public parks and places of

public utility and sell plots of land on hire purchase or otherwise for development of society or for residential, commercial, industrial or any other use.

ii. And other main objects.

As per the notice of non- compliance of provisions of the Companies Act, 2013 in respect to filing of annual returns and financial statements since

incorporation, the name of the company was struck off in terms of provision of Section 248(1) of the Companies Act, 2013 read with Rule 7 and Rule

9 of the Companies (Removal of Names of Companies from the Register of Companies) Rules, 2016.

The Appellant has submitted that the company was in operation and the business activities were carried out by the company during the period of

striking off but the reporting of such activities through Annual Returns and Financial Statement had not been filed with Registrar of Companies due to

inadvertence on part of the management.

The Appellant has brought forward the following facts about it being in operation and functional during the period of striking off:

i. The copy of Bank Statement of ICIC Bank, from 01.11.2016 to 24.11.2016, having closing balance of Rs. 28,994/-; Canara Bank form 01.04.2014

to 23.02.2018, having closing balance of Rs. 1,97,754/-, reflecting various transactions done by the company before the period of striking off.

ii. The copy of financial statements of the company for the financial years from 31.03.2015 to 31.03.2017. The Balance Sheet as on 31.03.2017

reflects tangible fixed assets of Rs. 6,43,873/-. and reflects loss of Rs.21,124/-.

iii. The copies of Income Tax Returns filed for the assessment years from 2015-16 to 2017-18 as NIL returns.

iv. The copy of sale deed dated 30.06.2010 executed between Mr. Naresh Kumar as vendor and the appellant company as vendee for the property

situated at Lal Dora Abadi Village Kapashera, Vasant Vihar, New Delhi, admeasuring about 57.26 square meters for total consideration of Rs.

5,20,000/-, which is reflected in the balance sheets of the appellant company, for subsequent years.

It is further submitted by the Appellants that the failure to file financial statements and annual returns with the Registrar of Companies, NCT of

Delhi and Haryana was due to inadvertence on part of the management and as such there was no wilful or mala-fide motive behind nonfiling of the

Financial Statements and Annual returns.

The Registrar of Companies has stated that it has no objection if the name of the Company is restored on proving by the Company that it was

carrying on business or was in operation and the Company be also directed to file financial statements up to date with appropriate filing and additional

fees.

The Income Tax Department has submitted in its report that there is no outstanding demand against the Assessee and has no objection if the

company is considered for revival.

The Section 252(3) contemplates that one of the three conditions are required to be satisfied before exercising jurisdiction to restore company to its

original name on the register of the Registrar of Companies namely:

i. That the company at the time of its name was struck off was carrying on business.

ii. Or it was in operation

iii. Or it is otherwise just that the name of the company be restored on the register.

The Appellant have submitted sufficient evidence that it has been in operation and doing business during the period of striking off and therefore

could not be termed as defunct company. Thus, taking into consideration the provisions of Section 252(3) of the Companies Act, 2013 which vests this

Tribunal with a discretion where the Company whose name has been struck off and such Company is able to demonstrate that there is a running

business as on the date when the name was struck off and also keeping in consideration that it is just to do so in order to restore the name of the

Company in the Register and in the interest of all stakeholders including the Appellant itself who seeks restoration of the name of the Company in the

register maintained by Registrar of Companies, the company deserved to be restored.

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 Registrar of Companies is ordered subject to its filing 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

the respondent for the late filing of statutory returns, and also subject to payment of cost of Rs. 25,000/- to be paid to Prime Minister's Relief Fund.

The name of the Appellant Company shall then, as a consequence, stand restored to the Register of the Registrar 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.