Naveen Engineering Works Private Limited And Ors. vs Registrar Of Companies And Anr

Hemant Kumar Sarangi, Member (T)

This appeal is filed by Naveen Engineering works private limited (for brevity the 'Appellant No.1'), through its director and shareholder Mr. Rakesh

Kumar Tiwari, under Section 252(1) of the Companies Act, 2013 (for brevity the Act') against the order passed by the Respondent No.1 removing the

name of the Appellant Company from the Respondent No.1 records in exercise of its power under Section 248(5) of the Companies Act.

The Appellant No. 1 is a company incorporated on 01.09.2009 under the provisions of Companies Act, 1956 as a private limited company with the

Registrar of Companies NCT of Delhi and Haryana and having its registered office at 33, Baldev Park, New Delhi-110051, with

CINU45400DL2009PTC194827 as per the Certificate of Incorporation annexed with the application herein. The Authorized share capital of the

Company is Rs.1,00,000/- (Rupees One Lac) divided into 10,000 equity share of Rs.10 each. And the issued, Subscribed and Paid up Capital of the

company is Rs.1,00,000/-.

The Appellant No. 2 and 3 are the directors and shareholders of the Appellant No.1 Company. The last AGM of the Appellant No. 1 Company

was held on 30.09.2018 and the last balance sheet filed is upto the year ending 2018.

The main objectives of the Company is to carry on the business of electrical engineering, contracts, manufacturing, supplying and dealing in

electrical appliances, cables, wirelines, dry-cells, accumulators, lamp and works. The company generates, accumulates, distributes and supplies

electricity for the purpose of light, heat, motor power and for all other purpose for which electrical energy can be employed. Also deals in the

apparatuses required for or capable of being used in connection with generation, distribution, supply, accumulation and employment of electricity that

may be directly or indirectly derived there from or may be incidentally hereinafter discovered in dealing with electricity.

5 The Respondent No. 1 herein is the Registrar of Companies of NCT Delhi & Haryana, the ROC 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

had struck off the name of the Appellant company from its register. The Respondent No.2 is the Income Tax Department, through its deputy

commissioner of income tax having jurisdiction of the appellants herein.

Owing to the non filing of the annual returns and annual financial statements, the respondent vide notice in STK Form -7 struck off the name of

Appellant Company from its register. The respondent No. lconsidering that the appellant company has either failed to commence its business within

one year of its incorporation and is not carrying on any business or operation for a period of two immediately preceding financial years and has not

made any application within such period for obtaining the status of dormant company under Section 455,struck off the name of the Appellant

Company.

The appellant submits that the company failed to file its annual returns and financial statements since 2015 due to lack of professional advice.

Further, the appellant did not receive any statutory notice under Section 248(1) of the Companies Act 2013, nor any public notice in Form No. STK-5

prior to striking off the name of the Appellant Company from its register. Further, no intimation was given under Form No. STK-7 of intention to

remove the name of the Appellant Company from its register and requesting them to send their representations along with copies of the relevant

documents within a period of thirty days from the date of notice owing to which the appellant were to be afforded a reasonable opportunity of being

heard and to show cause.

The appellant further submits that neither Appellant No. 1 Company nor its directors have willfully overlooked the said notice. The grounds on

which the company's name was removed from the ROC records.

The appellant submits that they have been in operation and was carrying on business at the time the name was stuck off. The Appellant has brought

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

a) The Appellant Company has been allotted the property situated at E-28, Industrial Area, GNEPIP, Kasna, Greater Noida (Gautam Budh Nagar) by

the U.P. state Industrial Development Corporation limited on lease for industrial purpose.

b) The appellant Company has also obtained the cash credit facility from the Bank of Baroda, Vasundhra Branch, Ghaziabad amounting to lNR

20,00,000/- and the same was also settled. The bank has also issued a no dues certificate with respect to this facility and the same is annexed with the

appeal herein.

On perusal of the MCA website, that appellant has come to know that the the name of the respondent 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 by the ROC.

The Registrar of Companies and the Income Tax department has not filed its reply with regards any objection for the revival of the name of the

company.

12.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:

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

b) Or it was in operation.

c) 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 during the period of striking off and therefore could not be termed

as a 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, can 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 off the name of the company is set aside. The Registrar

of company is directed to restore the company's name in their Register 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 proceed to take such other and further penal action against the respondents in

accordance with statutory provisions.

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.