P.S. Buildwell Pvt. Ltd. vs Registrar Of Companies And Anr.

This appeal is filed by the company, P.S. Buildwell Private Limited (for brevity the `Company'), through its Director, Mr. Raj Kumar, 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 248 (1) of the Act read with Rule 7 of Companies (Removal of Names of Companies from the Register of Companies) Rules, 2016 published

on 30.06.2017 vide notification no. ROC-DEL/248(5)/STK-7/2879 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 14.02.2007 having CIN U45200DL2007PTC159299.

3 The company is having registered office at B- 1 /13, Dasrath Puri, Palam Dabri Road, New Delhi-110094.

Authorized share capital of the Company is Rs.1,00,000/- divided into 10,000 equity shares of Rs.10/- each and 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.

The main objects of the company are:

i. To carry on the business of development of infrastructure and to undertake infrastructure projects and to purchase, sell, develop, construct, hire or

otherwise and deal in all real or personal estate/properties.

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 since

incorporation, 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 Bank of Baroda, from 01.04.2016 to 16.03.2018, reflecting various transactions done by the

company during the period of striking off and having closing balance of Rs. 11,000 as on 17.08.2017.

ii. The copies of financial statements of the company for the financial years from 31.03.2013 up to 31.03.2017. The Balance Sheet as on 31.03.2017

reflects cash & cash equivalent of Rs. 10001/- and Loss of Rs. 2500/-

iii. The copies of Income Tax Returns filed for the assessment years 2013-14 to 2017-18 as NIL returns.

iv. The copy of the sale deed, dated 10.12.2008, of the plot of agricultural land in state of Uttar Pradesh in the name of the company, situated at village

Sadarpur, Khata No.185, Khasra No.758 for Rs. 47,50,000/- which is also reflected in the balance sheet of the relevant period.

It is further submitted by the Appellants that the failure to file financial statements and annual returns with the Registrar of Companies, NCT of

Delhi and Haryana was due to inadvertence on part of the management and due to lack of professional guidance and as such there was no wilful or

mala-fide motive behind non-filing of the Financial Statements and Annual returns.

The Ld. Counsel has relied on three Judgements, passed by Hon'ble Justice Sudershan Kumar Misra, of the Honourable High Court of Delhi

wherein an order of Honourable High Court of Bombay, in ""Purushottandass and Anr. (Bulakidas Mohta Co. P. Ltd.) v. ROC, Maharashtra & Ors.

was referred which had settled the law for revival of the struck off company in support of their argument which in brief reflects the following:

If a company, or any member or creditor or workman thereof feels aggrieved by the company having its name struck off from the register

of companies, the Tribunal on an application made by the company, member, creditor or workman before the expiry of twenty years from

the publication in the Official Gazette of the notice under sub-section (5) of section 248 may, if satisfied that the company was, at the time of

its name being struck off carrying on business or in operation or otherwise it is just that the name of the company be restored to the register

of companies, order the name of the company to be restored to the register of companies, and the Tribunal may, by the order, give such

other directions and make such provisions as deemed just for placing the company and all other persons in the same position as nearly as

may be as if the name of the company had not been struck off from the register of companies.

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 demand against the Assessee and has no objection if the

company is considered for revival.

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.