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Judgment
S. Ramathilagam, Member (Judicial)
Under consideration is an Appeal filed by Mr. R. Venkataraman, together in the capacity as member cum director of the Company viz, of M/s. Balaj Gum India Private Limited (hereinafter the "Company") under Section 252 of the Companies Act, 2013 aggrieved against the order of strike off carried out by the Respondent viz, the Registrar of Companies, Chennai under Section 248 of the Companies Act, 2013. The present Appeal has been filed by the Applicant seeking thereof to restore the name of the Company in the Register maintained by the Respondent/RoC.
The Company was incorporated on 13.05.2013 as per the provisions of Companies Act, 2013, bearing CIN: U36100TN2013PTC091117 having its registered office at No. 24, Amudhann Nagar 1st Street, Kodungaiyur, Chennai - 600 118 . The main object of the Company is (1) To carry on the business as manufacture, producer, processors growers, refiners, makers, inventors, convemtors, and importers. exporters, traders, buyers, sellers, retailers, wholesalers, suppliers indenters, bottlers, packers, movers, preservers, stockiest, agents, sub-agents, merchants, distributors, consignors, jobbers, brokers, concessionaires, or Otherwise deal in all kinds of adhesive, sealants, starch, gum, dextrine, silicate, rubber, latex, pf, uf, and pva, and all others products used for making, or producing adhesives and sealants. (2) To carry on business as manufacturers of and dealers in rubber foam mattresses, cushions, pillows and furniture of every kind or description. (3) To carry on work under job basis from any other manufacture, exporter, Importer, wholesalers, retailers and dealers for adhesive solutions, industrial gums and furniture. (4) To establish, run, maintain, manage, administer, conduct, procure, provide or make available technical, commercial, management and such other types of consultancy services and render partial and total guidance and services to persons, institutions and industrial undertakings engaged in research, development, purchase and marketing of adhesive solution gums. The details of the main object are set out in the Memorandum of Association which is filed along with the typed set of documents.
The Company has not filed its Balance sheet and annual returns as per the provisions of the Companies Act, 2013 from the date of its incorporation and hence the Respondent had initiated proceedings under the provisions of Section 248 of the Companies Act, 2013 and consequently struck off the name of the Company from the Register maintained by them. It is further submitted that the Respondent/RoC has followed the procedure laid down under section 248(1) of the Companies Act, the Respondent/RoC has issued Form STK-5 on 04.06.2018 and Form STK-7 on 09.08.2018. It is further submitted that the Respondent / RoC has published the notification the Official Gazette of India dated 18.08.2018
There is no sufficient reason or explanation in the instant Company Appeal for non filing of the returns with the Respondent/RoC. It is further submitted that the Applicants had infused funds into the Corpus of the Struck off Company from their pockets for purchase of inventories and also to keep the struck off Company away from the clutches of loans. It is accordingly submitted that as a result of which the struck off Company, right from its incorporation was not able to make that desired p rofit owing to increase in cost of inventories. It is further submitted that the Company was carrying on its business ever since the date of incorporation except during the Covid19 period for which the Appellant had annexed GST returns and balance sheet. Hence, the Appellant has filed the present Appeal seeking thereof to restore the name of the Company in the Register maintained by the Respondent/RoC on the grounds that the Company is active and carrying on its business for the purpose for which it was incorporated.
Upon notice, the Respondent/RoC has filed the Report wherein it is seen that the ROC in its Report has objected that mere filing for Income Tax Returns and GST Returns for the year 2018-2019, 2019-2020 and 2020-2021 does not prove any active functioning of the Company during the period of default. Further had prayed for dismissal of the instant Appeal.
We have considered the plea of the Company and the Respondent/RoC as well. The Appellant is seeking restoration of the name of the Company in the register as maintained by RoC by relying up on the ground that the Petitioner Company as of date is carrying on the business for which it was incorporated and it is in mere operation, the Appellant has submitted the following documents:
a. Copy of GST Returns for the period ending 2018- 2019 to 2020-2021
b. Copy of Balance Sheet
c. Copy of IT Returns for AY 2019-2020
Upon perusing the aforesaid documents, it is seen from the GST Returns Form-3B that Tax on outward tax supplies was paid during 2018-2019 and 2020-2021 and the balance sheet annexed also shows revenue from operations during the default period. Thus, taking into consideration the provisions of Section 252 of the Companies Act, 2013 and that the Company was operating since its incorporation more particularly during the default period, we hereby order for restoration of the name of the Company in the register maintained by the Respondent, subject to the following directions namely:
i. The Registrar of Companies, Coimbatore is ordered to restore the original status of the Company M/s. Balaj Gums India Private Limited as if the name of the Company has not been struck off from the Register of Companies with resultant and consequential actions like changing the status of Company from "strike off" to "Active"
ii. The Company shall within a period of 30 days from the restoration of the Company's name in the register being maintained by the RoC, the Petitioner/ Applicant will file inter alia its annual returns and balance sheets as well other compliances statutorily required to be made under the Companies Act, 2013 for the period from which there has been default with requisite charges/fees as well as additional fee/late charges.
iii. That the Restoration of the Company's name is also subject to the payment of cost of Rs .1.00,0001- (One Lakh Rupees Only) through online payment in www.mca.gov.in under miscellaneous fees by mentioning the particulars as "payment of cost for revival of Company".
iv. Till all compliances are made by the Company, the Company shall not alienate or dispose of any of its valuable assets.
v. It is further observed that by virtue of this order of restoration of the name of Company in the register, shall not automatically entitle the Directors of the Company whose names in case have been disqualified under Section 164 of the Companies Act, 2013 by the Respondent/RoC to be restored to directorship except in accordance with law.
vi. An affidavit of compliance of the aforesaid directions shall be filed by the Petitioner within a period of 2 months from the date of this order.
vii. The shareholders of Petitioner Company shall jointly submit an Undertaking to the Registrar of Companies stating therein that the accounts of the Company were not used as means to transact tainted money during the period of demonetization.
viii. Further, this order allowing the Application shall also not circumscribe the power of the respondent to proceed against the Company and its Directors as mandated for alleged late filing of any forms, documents, returns and such other compliance under the provisions of Companies Act, 2013.
The Application stands Allowed on the aforementioned terms.