Rajesh Durgalal Kotia And Anr. vs M/s Kotia Nirman Premises Private Limited And Anr.

This is an appeal under Section 252 (1) of the Companies Act, 2013 (herein after called the Act) by Directors of the Company namely M/s KOTIA NIRMAN PREMISES PRIVATE LIMITED (herein after referred to as the Company) seekingrestoration of itsname in the Register of Companies, for the State of Maharashtra.

2) The Company was incorporated on 02.03.2010 vide CIN: U70102MH2010PTC200522 under the Companies Act 1956 in the State of Maharashtra. The Authorised Share Capital of the Company is Rs. 1,00,000/- (Rupees One Lakh only) divided into 10,000 (Ten Thousand) Equity Shares of Rs. 10/- (Rupee Ten only) each. The present subscribed and paid-up capital of the Company is Rs. 1,00,000/- (Rupees One Lakh only) divided into 10,000 (Ten Thousand) Equity Shares of Rs. 10/- (Rupee Ten Only) each. The Company has two Directors, namely the present appellants, each having 50% shareholding. The Company was established with the object of Trade and Business of all kinds of Agricultural, Horticultural, Seri cultural products, Dairy products, agricultural, vegetable or fruit products and to carry on all or any of the business of farmers.

3) The Company did not file its Annual Financial Statements and Annual Returns with Registrar of Companies (RoC), Maharashtra, Mumbai for the period from 2013-14 to 2017-18. The RoC, Maharashtra, Mumbai issued the public notice in Form No. STK-5 on 03.05.2017 proposing to remove the name of the Company from the Register of Companies. The Appellants were not aware of the notice and hence could not respond to it within the stipulated 30 days there from. The RoC, Maharashtra, Mumbai in the absence of any reply or show cause struck off the name of the Company and removed it from the Register of Companies vide Order dated 10.07.2017. It is contended by the Appellants that failure to respond to the notice dated 03.05.2017 was an inadvertent mistake and was neither intentional nor deliberate. They have accordingly sought restoration of the name of the Company in the RoC, Maharashtra, Mumbai.

4) The Appellants further stated that the Company is active since incorporation and is carrying out its business successfully from the date of its incorporation. The Company is regular in conducting the Board Meetings and General Meetings in compliance with the provisions of the Companies Act, 2013. The Company had substantial revenue during the Financial 2016-2017.

5) The Appellant has submitted copies of audited Financial Statements for the years 2013-14 to 2017-2018 and also copies of Income Tax Returns. The Appellant has also submitted an Affidavit stating that the Company did not deal with receipts/ deposits of any huge amount of cash in violation of Income Tax Act/Rules, or any other applicable Banking Rules and Regulations, during demonetisation period and pre/post demonetisation together with a copy of the Bank statement of the Company for the period from 01.04.2011 to 30.09.2013.

6) The Directors of the Company have decided to equip the Company with necessary wherewithal to get the company gear up its operations. Unless the Company's name is restored it will prejudicially affect its prospects and adversely influence the Directors in their future endeavours. Hence the Appeal.

7) The RoC, Maharashtra, Mumbai the Respondent herein, has filed a report dated 24.01.2019 wherein the details of the Company such as date of incorporation, address of the registered office and its main objects as per Memorandum of Association are mentioned. While submitting the above facts the RoC has stated that the Appeal may be considered on merits by imposing costs and the appellant may be directed to file all pending Financial Statements and Annual Returns.

8) We have heard the Learned Counsel for the Appellant and perused the records. The materials available on record indicate that the failure of the Company to furnish the statutory returns with the RoC was not intentional. The promoters of the Applicant Company as well as the Appellants are keen to carry on and perform the objects of the Company in right earnest and to run the Company. There has been substantial investment in the project as well. Unless the name of the Company is restored in the Register of Companies it would suffer financially and go out of business. The directors of the company would also face disqualification in their future endeavours. We are satisfied that the name of the Company should be restored in the Register of Companies. Hence ordered.

O R D E R

The Appeal be and the same is allowed on contest. The impugned order dated 10.07.2017 striking off the name of the Company is set aside. The name of the Company be restored in the Register of Companies, Maharashtra, subject to the following: -

i. The Appellants shall within two months hence file all the pending Financial Statements and Annual & Statutory returns with the RoC, Maharashtra as required under the Act and Rules made thereunder.

ii. They shall within 30 days deliver a certified copy of the order and pay a sum of Rs. 30,000 /- (Rupees Thirty Thousand only) to the RoC, towards costs to defray the expenses incurred by the RoC, Mumbai.

iii. Upon compliance, the RoC, Mumbai on receipt of the order shall in his Official name and stamp, publish the order in the Official Gazette and restore the name of the Company in the Register of Companies forthwith.

iv. The Order however shall not fetter the authority of the RoC to take appropriate action against the Company for any other violation either prior to 10.07.2017 or in the interregnum.

v. Needless to say, failure to comply with any of the conditions would nullify the effect of this order.