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Judgment
JUSTICE RAKESH KUMAR, MEMBER (JUDICIAL)
The present appeal has been preferred under Section 421 of the Companies Act, 2013 against an order dated 13.01.2023 passed by National Company Law Tribunal, New Delhi Bench, Court III (hereinafter referred to as ‘NCLT’) whereby the learned NCLT has allowed IA No.216/ND/2022 filed in CP No.58/2012 on behalf of Respondent No.1 (Sankalp Buildwell Pvt Ltd). The Learned NCLT while allowing IA No.216/2022 dismissed CP No.58/ND/2012. The order impugned for better appreciation is reproduced as follows:
The present IA No. 216 of 2022 has been filed by Sankalp Buildwell Private Limited (hereinafter, referred to as the 'Applicant'), which is the Respondent No.1 in the main Company Petition No. 58(ND)/2012, under Rule 11 of NCLT Rules, 2016 seeking the following main relief:
"al The Company petition being C.P. No. 58(ND)/2012 [Panthera Developers Private Limited vs. Sankalp Buildwell Private Limited & Ors.] pending before this Hon'ble Tribunal be dismissed."
2.The Applicant herein has sought dismissal of CP. No. 58/ND/2012 on the ground that the Applicant in that CP viz., M/s. Panthera Developers Private Limited was struck off from the register of ROC on 08.08.2018 vide Notice No. ROC/DELHI/248(5)/STK-7/4865 of the RoC. In the CP. No. 58/ND/2012, the petitioner M/s Panthera Developers Private Limited had sought the following reliefs:
i)"Direct Respondent no.4 and 5 to produce documents verifying their appointment as nominee Directors for taking any further action in this regard by to Respondent No. 1 Company.
ii)Declare the removal of the existing Directors Respondent no. 8 and 9 and appointment of Respondents 4 and 5 fraudulently by filing of Form 32 by Respondent No. 7 as null and void.
iii)Restrain Respondents nos. 2, 3, 4 and 5 from appointing any nominee directors of Respondent no.2 to the board of the Respondent Company without proper board resolution passed in a legally held meeting of the Respondent No. 2.
iv)Declare the notice of Board meeting of Respondent No. 1 Company issued by Respondent No. 7 be null said void.
v)Restrain Respondent no. 2, 3, 4 & 5 from illegally and fraudulently proposing/ buying their shares of the petitioner in the respondent company and further not effect any transfer of shares in the records of the Company.
vi) Declare the change in Registered Office of the Respondent No. 1 Company on along with the Form 18 filed with Registrar of Companies as null and void
vii) Declare all other acts, deeds and things done by the Respondents in pursuance of the aforesaid forms or otherwise, if any, not in the knowledge of the Petitioner as illegal and null and void.
viii) Pass an appropriate order directing the Respondent No. 1 Company to give consequential effects in implementation of the directions/ declaration as per Prayers (i) to (vii) above.
ix)Pass an appropriate order granting the interim reliefs as as prayed for in Para 69 above as final reliefs.
x)Pass such other orders as may be deemed fit and proper by this Hon'ble Board in the facts and circumstances of the case.
3.It is submitted by the Applicant that subsequently, M/s. Panthera Developers Private Limited had challenged the action of ROC by filing an appeal No. 209/252(ND)/2019 under Section 252 of Companies Act, 2013, which was allowed vide order dated 15.05.2019, subject to the condition that the company shall file the outstanding documents for defaulting years, make payment of late fees, other charges and complete necessary formalities as prescribed together with payment of the cost of Rs. 25,000/- in the Prime Minister Relief Fund (PMRF).
4.We have heard the Ld. Counsel for the Applicant and perused the documents placed on record. It is a matter of fact that M/s. Panthera Developers Private Limited was struck off from the register of ROC on 08.08.2018 and an appeal No. 209/252(ND)/2019 under Section 252 of Companies Act, 2013 was preferred by it, which was allowed by this Tribunal vide order dated 15.05.2019 subject to payment of cost of Rs. 25,000/- to the Prime Minister Relief Fund. The restoration of the petitioner company's name in the Register was further subject to their filing all outstanding documents for the defaulting years as required by law and completion of all formalities, including payment of any late fee or other charges which are leviable by the respondent for the late filing of statutory returns.
5.During the course of hearing, the Applicant brought to our attention that the CA. No. 448 of 2022 filed in Appeal No. 209/252(ND)/2019 by one of the shareholders of M/s. Panthera Developers Private Limited, under Rule 11 of NCLT Rules 2016, for seeking modification of the order dated 15th May 2019 to the extent of removing condition of filling of pending documents with the Registrar of Companies, NCT of Delhi and Haryana, has already been dismissed by this Tribunal vide order dated 23.12.2022 with cost of Rs. 50,000/-to be deposited by the Applicant in the Prime Ministers Relief Fund.
6.At this stage, we also consider it appropriate to refer to the master data of M/s. Panthera Developers Private Limited available in public domain on the website of the Ministry of Corporate Affairs (MCA), which is reproduced below, for the sake of reference:
7.Evidently, the status of M/s. Panthera Developers Private Limited, the Applicant in main Company Petition No. 58/(ND1/2012, in the above referred Master Data is shown as "strike off" as on date. Hence, in our considered view, no proceedings can be initiated by or against the "Struck off Company"
8.At this juncture, we also refer to Section 250 of the Companies Act, 2013, which reads as below:
250.Effect of company notified as dissolved. Where a company stands dissolved under section 248, it shall on and from the date mentioned in the notice under sub-section (5) of that section cease to operate as a company and the Certificate of Incorporation issued to it shall be deemed to have been cancelled from such date except for the purpose of realising the amount due to the company and for the payment or discharge of the liabilities or obligations of the company.
9.On perusal of the abovesaid provision, it is evident that the legislature has given exception to a struck off company to be treated as dissolved only, when the company has to realise its dues or pay dues in discharge of its liability.
However, on perusal of the prayers sought in the petition filed by M/s. Panthera Developers Private Limited, it is observed that none of its prayers come under this exception.
10.Since the Petitioner in the Company Petition No. 58/(ND)/2012 M/s. Panthera Developers Private Limited ceased to exist as a Company, we allow the prayer made by the Applicant herein. Accordingly, the present I.A. No. 216/ND/2022 is allowed.
11.In view of the above, the CP. No. 58/ND/2012 stands Dismissed.
Typed copy of Company Master Data
CIN U70109DL2006PTC151582
Company Name PANTHERA DEVELOPERS PRIVATE LTD
ROC CODE ROC-DELHI
Registration Number 151582
Company Category Company Limited by Shares
Company Sub-category Non-Govt company
Class of Company Private
Authorised Capital(Rs) 100000000
Paid Up Capital(Rs) 12900000
Number of Members(Applicable 0 In case of company without Share Capital)
Date of Incorporation 03/08/2006
Registered Address F-1898 First Floor (Opp B-50) South Exten. Part I, New Delhi South Delhi DL 110049 IN
Address other than R/o where All or any books of account And papers are maintained -
E mail ID aashish@kalras.com
Whether listed or not Unlisted
ACTIV compliance
Suspended at stock exchange -
Date of last AGM 29/09/2012
Date of Balance Sheet 31/03/2012
Company Status (for efiling0 Strike off\
Charges
Charge Id Assets under charge Charge Amount Date of creation Date of Modification Status
No charges exists for Company/LLP
Directors/Signatory Details
Din/pan Name Begin date End date Surrendered
01431119 DHARAM VIR CHUGH 30/09/2011 -
01877020 DEVINDER PARKASH KALRA 30/09/2011
05242508 ANURADHA KALRA 30/12/2014
The short fact of the case is that the appellant herein long back in the year 2012 had filed CP No.58/2012 under Section 397 and 398 read with Section 402 and 403 of the Companies Act, 1956 primarily making an allegation of oppression and mismanagement of Respondent No.1 company. In the CP 58/2012 the appellant herein has prayed for following reliefs:
(i)Direct Respondent no.4 and 5 to produce documents verifying their appointment as nominee Directors for taking any further action in this regard by the Respondent No. 1 Company.
(ii)Declare the removal of the existing Directors Respondent no.8 and 9 and appointment of Respondents 4 and 5 fraudulently by filing of Form 32 by Respondent No 7 as null and void.
(iii)Restrain Respondent nos. 2, 3, 4 and 5 from appointing any nominee directors of Respondent no.2 to the board of the Respondent Company without proper Board resolution passed in a legally held meeting of the Respondent No. 2.
(iv)Declare the notice of Board meeting of Respondent No. 1 Company issued by Respondent No. 7 be null and void.
(v)Restrain Respondent no.2, 3, 4 & 5 from illegally and fraudulently proposing/buying their shares of the petitioner in the respondent company and further not effect any transfer of shares in the records of the Company.
(vi)Declare the change in Registered Office of the Respondent No. 1 Company on along with the Form 18 filed with Registrar of Companies as null and void.
(vii)Declare all other acts, deeds and things done by the Respondents in pursuance of the aforesaid forms or otherwise, if any, not in the knowledge of the Petitioner as illegal and null and void.
(viii)Pass an appropriate order directing the Respondent No. 1 Company to give consequential effects in implementation of the directions/declaration as per Prayers (I) to (vii) above.
(ix)Pass an appropriate order granting the interim reliefs as prayed for in Para 69 above as final reliefs.
(x)Pass such other orders as may be deemed fit and proper by this Hon'ble Board in the facts and circumstances of the case.
During the pendency of the said Company Petition since the appellant failed to file statement and annual return before the Registrar of Companies (hereinafter referred to as ROC) by order dated 08.08.2018 exercising powers under Section 248(5) of the Companies Act, 2013 the ROC struck down the name of the appellant company from the register of companies maintained in the office of ROC. From the record it is evident that the appellant company after the year 2012 had not filed any statement/return to the ROC and as such vide Notice No.ROC Delhi/248(5)/STK-7/4865 dated 08.08.2018 the appellant company’s name was struck off. The appellant company was incorporated on 3rd August, 2006 with Corporate Identity Number U70109DL2006PTC151582 issued by the ROC having registered office at B-1, The Mira Corporate Suits, Old Ishwar Nagar, New Delhi.
The appellant in CP No.58/2012 had claimed that it was holding 60000 Class A equity shares of Respondent No.1 company. Subsequently after the name of the company was struck off from the register of ROC by order dated 08.08.2018 the appellant filed an appeal under the provisions of Section 252 of the Companies Act, 2013 before the NCLT vide Appeal No.209/252/ND/2019. It was admitted by the appellant before the NCLT that the appellant had failed to file its annual return and financial statements after the year ending 31.03.2012. The appellant company also admitted its default in carrying out the statutory compliances but a plea was taken that it happened due to a dead lock in the management of the company. A plea was taken that without following the principles of natural justice the ROC had passed the order of striking off the name of the company. The NCLT after considering the facts and circumstances allowed the appeal by its order dated 15.05.2019 considering it just and equitable to restore the name of the company in the register of companies. Learned NCLT allowed the application for restoration subject to payment of cost of Rs.25000/- to the Prime Minister’s Relief Fund. It was further directed that the restoration of the appellant company’s name in the register will be subject to their filing all outstanding documents for the defaulting years as required by law and completion of all formalities including payment of any late fee or other charges which were leviable for the late filing of statutory returns. Only after complying such conditions it was directed to restore the name of the appellant company in the register of ROC.
It is further evident that even though by order dated 15.05.2019 the NCLT allowed the application for restoration of name of company subject to fulfilment of certain conditions, the appellant did not take any proper step and much belatedly in the year 2022 on behalf of the appellant an application vide CA No.448/2022 was filed before the NCLT under Rule 11 of the NCLT Rules, 2016 for the following reliefs:
a)Direct for listing of the instant Appeal No. 209/252/2019;
b)Modify the order dated 15th May 2019 to the extent of removing condition of filing of pending documents with the Registrar of Companies, NCT of Delhi and Haryana, Ministry of Corporate Affairs, Government of India;
c)Appoint an independent director cum administrator on the Board of M/s Panthera Developers Pvt. Ltd.;
d)Pass any other order as the Hon’ble Tribunal may deem fit in the facts and circumstances in the present matter.
However, learned NCLT considering the non-seriousness on the part of the appellant/company dismissed the said application with imposition of cost of Rs.50,000/-. Against the said order the appellant preferred an appeal vide Company Appeal (AT) No.7/2023 in which notices have been directed to be issued to Respondents.
Mr. Ashish Verma, learned counsel appearing on behalf of the appellant assailing the impugned order i.e. order dated 13.01.2023 has primarily argued that only on the ground that appellant company’s name has been struck off from the register of ROC the Company Petition filed by the appellant i.e. CP No.58/2012 was not required to be rejected by NCLT. He tried to persuade the Court that even after the name of the Company was struck off from the register of ROC the Company Petition i.e. CP No.58/2012 was required to proceed. He submits that the appellant company was having huge share holding in the Respondent No.1 company and since there were complete oppression and mismanagement the appellant had filed CP No.58/2012. According to learned counsel for the appellant even after the company’s name was struck off the CP was needed to be continued in the light of law laid down by Hon’ble Supreme Court as well as other orders passed by different courts.
Learned Counsel for the appellant has placed heavy reliance on a judgement of Hon’ble Supreme Court reported in (2020) 7 Supreme Court Cases 654 (Commissioner of Income Tax, Jaipur Vs. Gopal Shri Scrips Pvt Ltd). It was argued that in Gopal Shri Scrips Pvt Ltd case (Supra) the Income Tax Department had assailed the order of the Hon’ble High Court of Rajasthan whereby appeal preferred by assesse was dismissed having become infructuous in view of the fact that the name of the company was subsequently struck off under Section 560(5) of the Companies Act, 1956. He submits that Section 560 of the Companies Act, 1956 (old act) is similar to Section 241-242 of Companies Act, 2013. He has specifically drawn our attention to para 10 of the Hon’ble Supreme Court Judgement which is quoted hereinbelow:
“12.In our view, the High Court was wrong in dismissing the appeal as having rendered infructuous. The High Court failed to notice Section 506(5) proviso (a) of the Companies Act and further failed to notice Chapter XV of the Income Tax Act which deals with "liability in special cases" and its clause (L) which deals with "discontinuance of business or dissolution". The aforementioned two provisions, namely, one under the Companies Act and the other under the Income Tax Act specifically deal with the cases of the Companies, whose name has been struck off under Section 506 (5) of the Companies Act. These provisions provide as to how and in what manner the liability against such Company arising under the Companies Act and under the Income Tax Act is required to be dealt with. Since the High Court did not decide the appeal keeping in view the aforementioned two relevant provisions, the impugned order is not legally sustainable and has to be set aside.”
Learned counsel for the appellant has further placed reliance on an Interlocutory Order passed by the Income Tax Appellate Tribunal, New Delhi Bench. He has produced copy of the said order. At the time of arguments he has referred to number of paragraphs, however, he has specifically relied on para 24 of the said order which is quoted hereinbelow:-
“24.Though the Assesee company has been struck off under Section 248 of the Companies Act, 2013, in view of sub-sections (6) and (7) of Section 248 and Section 250 of Companies Act, 2013, the Certificate of Incorporation issued to the Assessee company cannot be treated as cancelled for the purpose of realising the amount due to the company and for payment or discharge of the liability or obligations of the company, we are of the opinion that the Appeal filed by the struck off Assessee company or Appeal filed by the Revenue against the struck off company are maintainable. Therefore, by rejecting the contention of the Ld. DR, we hold that the present Appeal filed by the Assessee (struck off company) is maintainable and the same has to be decided on merit.
(ii)Since, we held, the present Appeal is maintainable, the Counsel appearing on behalf of the Assessee Company has every locus to represent the Assessee in the present Appeal.
(iii)Office is directed to list the appeal before the regular Bench for hearing on 07.09.2022.”
It was further argued by the learned counsel for the appellant that against rejection of appellant’s IA which was filed before the NCLT for modification of the restoration order passed under Section 252 of the Companies Act and was dismissed with imposition of cost of Rs.50,000/-, the appellant’s appeal is pending before this Appellate Tribunal. Accordingly, he submits that the order impugned in the present appeal is liable to be set aside on the ground that even after striking off the name of the company from the register of ROC the CP No.58/2012 was maintainable.
Mr. Kaushik Chatterjee, learned counsel for the Respondent who had also filed caveat application in the present appeal opposing the appeal submits that once the appellant company cease to remain as company the Learned NCLT has rightly allowed the application filed by the Respondent No.1 for dismissal of CP No.58/2012 which was primarily filed on an allegation of oppression and mismanagement of Respondent No.1. He submits that after the name of the appellant company was struck off from the register of ROC there was no reason to allow the said company petition to further continue. He further submits that the non-seriousness on the part of the appellant is evident from the fact that after the submission of annual return/statement lastly on 31.03.2012 before the ROC, no step was taken by the appellant company to file annual return/statement continuously and only thereafter, the learned ROC exercising powers under Section 248 of the Companies Act, 2013 on 08.08.2018 issued final notice regarding striking off the name of the appellant company from the register of ROC. Even after striking off order one year thereafter the appellant filed an appeal under Section 252 of the Companies Act, 2013 before the NCLT for restoration of the name of the appellant company. Learned NCLT in view of just and equitable consideration allowed the application for restoration, subject to fulfilling certain mandatory conditions and also with imposition of cost of Rs.25000/-. The said order was passed on 15.5.2019 in Appeal No.209/252/ND/2019. However, again for about three years the appellant company slumbered over his right to get the name of the company restored after fulfilling conditions imposed by the NCLT. Instead of complying the condition as per order dated 15.05.2019, in the year 2022 the appellant company again filed an application by its CA No.448/2022 mainly for the purposes of modification of order dated 15.05.2019 besides making prayer for other reliefs. This time learned NCLT besides dismissing the application imposed the cost of Rs.50,000/-. Learned counsel for Respondent No.1 submits that the aforesaid conduct are sufficient to draw an inference that the appellant company was not at all serious to pursue his CA filed regarding oppression and mismanagement of Respondent No.1 which was obviously pending since 2012. According to learned counsel for Respondent the appellant may not get any support from either of the judgement/Interlocutory Order on which reliance has been placed by the learned counsel for the appellant. He submits that the present appeal is fit to be rejected.
Besides hearing learned counsel for the parties we have perused the materials available on record. It is true that the appellant, while was on the role of the register of ROC, had filed a Company Petition on an allegation of oppression and mismanagement of Respondent No.1 company which was numbered as CP No.58/2012, but during the pendency of the said petition the name of the appellant company was struck off due to his own default of non-filing of statutory return before the ROC continuously after 2012 and finally on 08.08.2018 the name of the appellant company was struck off from the register of the ROC. CP No.58/2012 was filed by the appellant in the capacity of company incorporated under the Companies Act. Once the name of the appellant company was ceased to be company it was not competent to maintain the CP No.58/2012. The Learned NCLT rightly dismissed the same by the impugned order At this juncture it would be appropriate to examine Section 250 of the Companies Act which is reproduced hereinbelow:-
“250.Effect of company notified as dissolved-Whether a company stands dissolved under Section 248, it shall on and from the date mentioned in the notice under sub-section (5) of that section cease to op0erate as a company and the Certificate of Incorporation issued to it shall be deemed to have been cancelled from such date except for the purpose of realising the amount due to the company and for the payment or discharge of the liabilities or obligations of the company.”
On examination of the aforesaid provision there is no doubt that after the striking off the name, a company ceases to remain as a company. However, even after dissolution of the company in view of striking off its name from the register, its existence remains only for the purpose of realising the amount due to the company or for the payment or discharge of the liabilities or obligations of the company. Meaning thereby that after striking off the name of the appellant company the appellant was not entitled to pursue the CP No.58/2012 which was primarily filed on an allegation of oppression and mismanagement of Respondent No.1 not for realisation of any debt. In so far as reliance placed by learned counsel for the appellant on Gopal Shri Scrips Pvt Ltd’s case (Supra) is concerned, we are of the opinion that the appellant may not get any assistance from the said judgement. The said case was primarily in relation to Tax liabilities and in the said case provisions of Income Tax Act, 1961 particularly Section 260 A and 176 of the Income Tax Act was under consideration besides the provisions contained under Section 560 of the Companies Act. However, in the present case the appellant had filed CP No.58/2012 on an allegation of oppression and mismanagement in the affairs of Respondent No.1 company. The present case cannot be equated with a dispute relating to realisation/claim of the Income Tax liabilities. Similarly Interlocutory Order passed by the Income Tax Appellate Tribunal on which reliance was placed by the Learned counsel for the appellant, the appellant may not get any assistance from the said judgement. The said case was also in relation to the dispute under the Income Tax Act and tax liabilities. Accordingly we are of the opinion that since the appellant on the date of passing of the impugned order had ceased to be company under the Companies Act and its name was already struck off from the register of the ROC, the CP No.58/2012 had become infructuous and learned NCLT has rightly dismissed the CP No.58/2012.
We do not find any error in the impugned order warranting interference. Accordingly the appeal stands dismissed without cost.