Neeraj Saraf vs Registrar Of Companies And Ors

Sumita Purkayastha, Member (T)

The present appeal is filed by Mr. Neeraj Saraf ex- Directors of M/s Saraf Projects Private Limited (for brevity the `Company'), under Section 252 of the Companies Act, 2013 (for brevity 'the Act') against the order of striking off the name of the company, passed by the Respondent under Section 248 (1) of the Act, issued vide bearing No. ROC/DELHI/248(1)/STK-7/6217 dated on 29.10.2019 by Registrar of Companies. the respondent herein.

The Appellant states that, the company was incorporated as a Private Limited Company with the Registrar of Companies, NCT of Delhi and Haryana under the Companies Act, 1956 on 10.12.2003 with CIN U45201DL2003PTC123445 ,having its registered office at 904, Surya Kiran Building, 19, KG Marg, New Delhi 110001, within the jurisdiction of this Tribunal.

The Authorized Share Capital of the company is Rs. 2,40,00,000/- divided into 24,00,000 equity shares of Rs. 10/- each and paid up share capital of the Company is Rs. 2,21,00,000/- divided into 22,10,000 equity shares of Rs. 10/- each, as per the Master Data Annexed.

The main objects of the company is to carry on the business of builders, colonizers, estate developers, town planner, architects, engineers and electrical, civil and maintenance contractors and for such purpose to prepare estimates, designs, plans, specifications or models.

The Respondent herein had issued Public notice bearing No. ROC- DEL/248(1)/STK-5/2019/3789 dated 09.08.2019. Consequently, its name was struck off vide notice bearing No. ROC/DELHI/248(1)/STK- 7/6217 dated on 29.10.2019(Company's name appearing at SI. No. 645).

As per the notice of non-compliance of provisions of the Companies Act, 2013, the Appellant Company has not filed its Annual Returns and balance sheet for a period of financial years 2012-13, 2013-14, 2014-15, 2015-16, 2016-17, 2017-18 and 2018-19, thereby giving rise to the surmise that the business of the company was not in operation. Consequently, the name of the company was struck off in terms of provisions of Section 248 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 brought forward the following documents about it being in operation and functional during the period of striking off:

i. The Copy of the agreement dated 29.03.2005 entered between the Appellant Company and Mr. Naveen Barisal and Mr. Ashwini Barisal for the ongoing project of the Appellant Company named as "Saraf Mall Projects" built in Panipat, Haryana.

ii. The copies of Audited Financial Statements of the company for the period from F. Y. 2012-13, 2013-14, 2014-15, 2015-16 2016-17, 2017-18 and 2018-19. The Balance Sheet as on 31.03.2019 reflects Fixed Assets of Rs. 30,060.34/-. Current Assets in form of Cash and cash equivalents of Rs. 24,710.26/ -.Revenue from operation as on 31.03.2018 Rs. 1,42,300/-.

The ROC has filed its reply dated on 01.07.2020 in which it has been stated that the company has not filed its Annual Returns and Balance Sheet for the financial year 2013 to 2019 respectively. The ROC further submits that the company was struck off by the office of ROC, as neither the company was carrying on any operation, nor it obtained the status of a Dormant Company under Section 455 of the Companies Act, 2013. The ROC further states that the appellant company has failed to produce any documentary proof, evincing that the company is in operations. The appellant company has only enclosed a copy of agreement dated 29.03.2005 entered between the Appellant Company and Mr. Naveen Barisal and Mr. Ashwini Barisal for the ongoing project of the Appellant Company named as "Saraf Mall Projects" built in Panipat, Haryana and that due to the unforeseen circumstances the project could not be completed.

The Income Tax Department has filed its reply on 14.09.2020 in which it has been submitted that the Company has filed its Income Tax Return for the A. Y. 2019-20 on 24.10.2019. It further states that a huge demand of Rs. 7,15,48,349..(not legible)/- is pending against the company. The Department states that there are no objections with respect to the restoration of the company. Hence the restoration should be allowed so that the Department can recover the demand pending against company.

The grounds contemplated under section 252 of Companies Act, 2013, are that the company was carrying on business or was in operation at the time of striking off its name, and where it appears "just" to the Adjudicating Authority that the name of the company is to be restored to the Register of Companies and the Section 252(1) further contemplates that one of the above three conditions are required to be satisfied before exercising jurisdiction to restore the company to its original name on the register of the Registrar of Companies.

The Appellant has submitted sufficient evidence of it being in operation during the period preceding strike off, therefore it could not be termed as a defunct company as per section 252 of the Act. The Appellant Company has also submitted the copy of the Agreement dated 29.03.2005 along with Photograph evidence of the ongoing project. The Appellant submitted that Approx 24 investors in the Company have invested in the booking of the commercial unit in the project. The striking off the name of the company shall cause financial loss to the investors. The Appellant undertakes to comply with the provisions of the act after its restoration. Thus, taking into consideration the provisions of Section 252(1) 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 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 deserves to be restored.

Accordingly, this appeal is allowed. The Public Notice of Registrar of Companies, striking off the name of the company, is hereby declared illegal and 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 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.