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Judgment
Rajesh Dayal Khare, J
The present appeal is filed by the Appellant U/s 252(3) of the Companies Act, 2013 read with Rule 87A of the National Company Law Tribunal Rules, 2016 for restoration of name of Radhey Krishna Hotels Private Limited struck off by the Registrar of Companies, Uttar Pradesh U/s 248 of the Companies Act, 2013 read with Companies (Removal of Names of Companies from the Register of Companies) Rules, 2016, from the Register of Companies maintained by the Registrar of Companies, Uttar Pradesh.
Facts of the appeal are stated as under:
i. The Appellant Company Radhey Krishna Hotels Private Limited was originally incorporated on 13.03.2008 with the Registrar of Companies, Uttar Pradesh having CIN U70102UP2008PTC034824.
ii. The Appellant Company is involved in business to carry on in India and/or abroad the business and dealers, developers of hotels, resorts and running of hotels, motels, row house cottages, retreats, clubs, restaurants and lodging houses, townships on virgin lands etc. The same is mentioned in the Memorandum of Association of the Company.
iii. Appellant submitted that the Registrar of Companies (Respondent herein) vide Public Notification dated 03.07.2017, struck off the Appellant Company's name due to default in statutory compliances w.r.t filing of Financial Statements and Annual Returns, thus giving the status of a Dormant Company u/s 455(1) of Companies Act, 2013.
iv. Appellant also stated that the Company has been active since its incorporation and had continuously maintained all the financial accounts including financial statements and Profit & Loss account as required under the Companies Act, 1956 and Rules made thereunder. It is also submitted that the Company had complied with all statutory filings with Registrar of Companies within prescribed time.
Upon notice being issued to the Respondent, ROC have filed their report and it is submitted that the Company has filed its Annual Return for the Year 2014 on 13.06.2017, 2015 on 13.06.2017 and, 2016 on 02.06.2017 and similarly filed its balance sheet for 2014 on 14.06.2017, 2015 on 13.06.2017 and for year 2016 on 02.06.2017 which could not be detected timely due to technical reasons and the name of the Company has got struck off after following the due process of law as per prevalent mandate of the Companies Act, 2013. Hence, for the reasons above, the Registrar of Companies has no objection in restoration of the name of Company.
Further, the Income Tax Authorities have not filed their reply as against the appeal. Hence, it is apparent that they have no objection if the Company is restored.
Heard the rival sides and perused the record. It is clear by the above stated facts that the Company had fulfilled the relevant statutory compliances with the Registrar of Companies, and the name of the Company was struck off due to the technical reasons.
This Tribunal has examined the relevant provision applicable for restoration of the name of the company as provided in Section 252 of the Companies Act 2013 and as per the facts and circumstances of the case, it will be in the interest of the Company, its Shareholders and Creditors, the name of the Company be ordered to be restored by this Bench while exercising its jurisdiction U/s 252 of the Companies Act, 2013 read with Rules made thereunder.
The provisions pertaining to restoration of the name of the company has been provided in Section 252 of the Companies Act 2013 which includes that, if it is just and equitable to restore the name of the company in the Registrar of Companies, it may direct the ROC to restore the name in its Register.
The Appellant has been able to satisfy this bench that it has certain assets which necessitate and justify the restoration of its name in the Register of Companies. A step as stringent as what has been taken at least requires an opportunity to the appellant to take remedial measures. Merely to disallow restoration on grounds of its failure to file annual returns would neither be just nor equitable. As per several decisions of various courts it should only be an exceptional circumstance that court should refuse restoration where the company has been struck off for its failure to file annual return as that would be excessive or inappropriate penalty for that oversight.
Accordingly, the Registrar of Companies, the Respondent herein, is ordered to restore the original status of the Appellant Company as if the name of the Company has not been struck off from the Registrar of Companies and take all consequential actions such as change of Company's status from 'Strike Off' to 'Active' (for e-filing), restoration of status of DIN etc.
The Appellant Company is directed to file all the statutory document(s) along with prescribed fees/additional fee/fine as decided by RoC within thirty days from the date on which its name is restored on the Register of Companies by the RoC.
The restoration of the Company's name is also subject to the payment of cost of Rs. 50,000/- (Rupees Fifty Thousand Only) through online payment in www.mca.gov.in under miscellaneous fee by mentioning particulars as "payment of cost for revival of Company pursuant to orders of NCLT in CA No. 463/ALD/2019.
The Appellant is permitted to deliver a certified copy of this order with RoC within thirty days of the receipt of this order. On such delivery and after duly complying with above directions, the Registrar of Companies, Kanpur is directed to, on his office name and seal, publish the order in the Official Gazette.
The Appellant shall publish a notice in leading newspaper in the district, regarding restoration of company after taking approval of the draft notice from RoC. The RoC is directed to verify the draft notice and approve the same if it is in order.
The RoC is directed to publish in the Official Gazette of the Government of India with regard to the restoration of the name of the company in the Register of Companies maintained by the Office of the Registrar of Companies at the expenses of the Appellant.
The appeal is disposed off accordingly.