Nitin Passi And Ors. vs Registrar Of Companies

Dr. Deepti Mukesh, J

This appeal is filed by the erstwhile Directors of the company, Swarn Biotech Private Limited (for brevity the ‘Company’), under Section

252(1) 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 560 (5) of the Act read with Fast Track Exit Mode published on 22.03.2013 by Registrar of Companies, the respondent herein.

The company is incorporated as a Private Limited Company under the provision of Companies Act, 1956 with the Registrar of Companies, NCT of

Delhi and Haryana on 16.05.2005 having CIN U24232DL2005PTC136287.

The company is having registered office at 191 Cariappa Marg Sainik Farms New Delhi-110062. The Authorized share capital of the Company is

Rs.1,00,000/- and issued, subscribed and paid up share capital of the Company is Rs.1,00,000/-

The main objects of the company are:

i. To manufacture, process, refine, formulate, import, export, buy, sell and otherwise deal in all kinds of biotech related drugs and pharmaceuticals

products, ayurvedic, unani, homeopathic, allopathic medicine and herbal cosmetic, herbal products, petroleum products and lifesaving drugs,

derivatives, compositions, intermediates and auxiliaries, waxes, alkalis, acids, cordials, drugs, tannins, essence, pharmaceuticals and other preparations,

and articles of any nature and kind whatsoever, mineral and other waters, compounds, drugs, dye stuff, organic or mineral intermediaries, goods and

materials, rubber products and all forms of organic and inorganic chemicals, petro-chemicals, fine chemicals, acids including fatty acids, sprays,

fungicides, insecticides, pesticides and biological products and preparations of all kinds, alkalis, pesticides, and germ killing materials, fertilizers, solvents

essences, glycerin, detergents, compounds, mixtures, derivates and by products, agro chemicals, oleo chemicals, synthetic drugs, foods additives,

beverages, including their intermediaries, compounds, mixtures, derivates and by products.

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, 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 company issued by HDFC Bank, from 01.04.2009 to 31.05.2009, reflecting various transactions done by the

company during the period of striking off.

ii. The copies of Financial Statements of the company for the financial years from 31.03.2011 to 31.03.2012. The Balance Sheet as on 31.03.2012

reflects fixed assets of Rs. 1,21,22,073/- and Loss of Rs. 1,17,870/-

iii. The copies of Income Tax Returns filed for the assessment years 2007-08 to 2010-11 as NIL returns.

iv. The copy of the lease deed dated 05.12.2008 executed between Greater Noida Industrial Development Authority as lessor and the appellant

company as lessee for the property situated at pot o 75/2 sector Ecotech -I Extension 1 within the Greater Noida Industrial Development Area,

Gautam Budha Nagar admeasuring about 4126.15 sqm for the term of ninety years.

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 against the assessee company and has no objection in revival of

the company.

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 since incorporation 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 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 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.