Om Deep Properties Private Limitedand Ors vs Registrar Of Companies And Ors

Hemant Kumar Sarangi, Member (T)

The present appeal is filed by the Directors of M/s. Om Deep Properties Private Limited (for brevity the 'Company'), under Section 252(3) of the Companies Act, 2013 (for brevity 'the Act') against the order of striking off the name of the company, passed by the Respondent No. 1, under Section 248 (1) of the Act, issued vide notification No. ROC/DELHI/248(5)/STK-7/2879 and published on 30.06.2017 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 26.08.2006 with CIN U70109 DL2006 PTC152505, having its registered office at A-102, Mehak Group Housing Board Society, Dwarka, New Delhi - 110075, within the jurisdiction of this Tribunal.

The Authorized Share Capital of the company is Rs. 2,00,000/- divided into 10,000 equity shares of Rs. 10/-each. The issued, subscribed and paid up share capital of the Company is Rs. 1,00,000/- divided into 10,000 equity shares of Rs. 10/- each, as per the Master Data Annexed.

The main objects of the company are:

(i) To carry on the business as owners, builders, colonizers, developers, promoters, proprietors, civil contractors, maintainers of residential, commercial and industrial buildings, colonies, hotels, mill's and factory's sheds and buildings, workship's buildings, cinema's houses buildings and to deal in all kinds of immovable properties whether belonging to the Company or not.

(ii) To undertake and carry on the business of purchasing, selling and developing and type of land or plot whether residential, commercial, industrial, rural or urban that may belong to the company or any other person of whatever nature and to deal in land or immovable properties of agreements to sell the land of the company or of anybody else.

(iii) And the other main objects.

The appellant further states that, a sweeping action was initiated by the ROC, at the instance of MCA, in striking of the names of several Companies, who had failed to file their Statutory Returns. The Appellant Company has not filed its Annual Returns and balance sheet for a period of two immediately preceding financial years, thereby giving rise to the surmise that the company was not in operation, in pursuance of Public notice STK - 5 dated 27.04.2017. Consequently, its name was struck off vide STK-7 notice dated 30.06.2017 by the Respondent from the Register of Companies under Section 248 of the Companies Act, 2013, upon taking steps in accordance with law and issuing a notification in the Official Gazette. The names of the affected companies were posted on its website.

The Respondent No. 1 herein had issued purported Public Notice bearing No. ROC/DELHI/248/STK-5/721 dated 27.04.2017 had sought explanation from the company as to why its name should not be struck off from the register of companies, on account of not carrying on any business or operation for a period of two immediately preceding financial years and having not made any application within such period for obtaining the status of a dormant company under section 455 of the Companies Act, 2013 (Act). Consequently, its name was struck off vide notice bearing No. ROC/DELHI/248(5)/STK-7/2879 dated 30.06.2017 (name of the company is reflected at Sl. No. 13803), whereby name of 24280 companies have been struck off from the Registrar of Companies and the Company has been dissolved.

As per the notice of non-compliance of provision of the Companies Act, 2013, the said company Annual Returns and balance sheet for a period of two immediately preceding financial years, 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 financial statement upto the year ending 31.03.2012 along with other statutory documents were duly filed by the Company with the ROC (duly reflecting in the Master Data of the Company). The company was active and was carrying out its business 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 said facts are evident from the Bank Account statement of the Company for the relevant period.

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 Memorandum of Understanding executed on 01.02.2008.

ii. The copy of Bank Statements of the Company of Corporation Bank Limited for the period 19.06.2012 to 30.09.2016 showing various transaction details of the company and reflecting closing balance of Rs. 21/- as on 30.09.2016.

iii. The copies of Audited Financial Statements of the Company for the period from F. Y. 2015-16 and 2016-17. The Balance Sheet as on 31.03.2017 reflects Current Assets in form of Cash & Bank Balances of Rs. 22,123.00.

iv. The copies of Income Tax Returns for the assessment years 2010-11, 2011-12 and 2018-19. The tax paid by the company for A.Y. 2018-19 is Rs. NIL.

v. Copy of FIR No. 280/2015 dated 31.01.2016 before Judicial Magistrate 1st Class alongwith Order Sheets.

The ROC has filed its reply on 03.12.2018 in which it has been stated that the company had filed its Annual Returns and Balance Sheet for year ended 2012. However, the ROC further submits that the company was struck off by the office of ROC, as neither the company was carrying on any operation for a period of two immediately preceding financial years, nor it obtained the status of a Dormant Company under Section 455 of the Companies Act, 2013.

The Income Tax Department has not filed any reply in spite of being given repeated opportunities to do the same. Hence, the present appeal is being decided in the absence of any reply from the Income Tax Department.

The grounds contemplated under section 252(3) of Companies Act, 2013, namely, that of the company 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(3) further contemplates that one of the above 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.

The Appellant has submitted sufficient evidence that it has been in operation since incorporation and during the period preceding strike off, therefore it could not be termed as defunct company as per section 252 of the Act. Further, records reveal that the company is a party to court proceeding & its restoration is essential for adjudication of dispute.

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 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.