Rajiv Yashawant Bhale vs Registrar Of Companies, Pune

1) None present for either side; however, the Report filed by the Respondent is available on record. In that view of the matter, we have perused the materials placed on record.

2) The present Company Appeal has been filed by Petitioners under Section 252 of the Companies Act, 2013 praying for restoration of name of the Company, Pratham Aqua Private Limited in the register of Companies maintained by Registrar of Companies, Pune.

3) It is submitted that the Registrar of Companies, Pune had struck off the name of the Company from the Register of Companies maintained by him initiated the process under Section 248(5) of the Companies Act, 2013 through Public Notice in STK-7 dt. 11.07.2017.

4) It is submitted that the Authorised Share Capital of the Company is Rs. 1,00,000/- divided into 10,000 number of Equity Shares of Rs. 10/- and the Issued Subscribed and Paid Up Capital of the Company is Rs. 1,00,000/-divided into 10,000 Equity Shares of Rs. 10/- each.

5) The main objects of the Company are to carry on in India or abroad the business of Manufacturers, Processors, Researchers, Consultants, Importers, Exporters, Traders, Distributors, Stockiest, Dealers, Franchise Holders, Bottlers, Rebottlers, Packers, Extractors, Pulpers, Crushers, Grinders of Aerated Water, Mineral Water, Bottled Water, Flavored Water, Sparkling Water, Natural Water, Distilled Water, Deionized Water, Spring Water, Carbonated and Non-Carbonated Drinks, Fruit Pulp, Milk, Fruit Juice, Jam, Jelly, Fruit Pulp, Sauce,

6) It is submitted that the Registrar of Companies, Pune struck off the name of the Petitioner Company due to defaults in statutory compliances, namely, failure to the Financial Statements and Annual Return for the period ended March, 2014 to March, 2016, with the Respondent herein. It is further submitted that the Petitioner Company was formed with the purpose of pursuing business in the field of the Water Industry, and the Company is one of the Group Companies of Pratham Group, which is a well-established business conglomerate with diversified presence across several industry verticals including manufacturing, Automobile Dealerships, Real Estate Projects and Engineering Services, etc.

7) The Respondent herein issued Public Notice dt. 11.07.2017, in Form No. STK-7, for removal of the name of the Company contending that the Company has failed to commence its business within one year of its incorporation; or the Company is not carrying on any business or operation for a period of two immediately preceding Financial Years and has not made any Application within such period for obtaining the status of Dormant Company under Section 455 of the Companies Act, 2013. However, it is averred that neither the Petitioner Company nor its Directors received any Notice at their respective addresses from the Respondent stating its intention to strike off the Company nor were they given any opportunity of being heard before the action of striking off the name of the Company, and the Petitioner Company was unaware of any such Notice and so could not file a Reply elaborating the reasons for not striking off its name from the Register of Companies maintained by the Registrar of Companies, Pune.

8) It is also further averred that the Company was formed with the intention of carrying business in water industry; however, could not find any major opportunity to start the business since incorporation as it required heavy investment. Further, the Company has not even opened its bank account and has not filed Income Tax Returns with the Income Tax Department. It is also mentioned that there are no employees, secured/unsecured loans creditors, debtors, whose interest are getting affected.

9) It is also stated that Financial Statements for the year 2013-14 to 2016-17 are prepared in time and duly approved in the respective Annual General Meetings by the Shareholders; but, the same could not be filed inadvertently and the delay in filing its unintentional, and the Company has not made any Application within such period for obtaining the status of Dormant Company.

10) Further, the Petitioners came to know that the Respondent have prepared a list of disqualified Directors and published the same in public domain on the web portal of the Respondent thereby suggesting that Petitioners herein are to be treated as “disqualified to be a Director”, due to alleged non-compliance/default on part of the Petitioner Company u/s 164(2)(a) of the Companies Act, 2013. To buttress their submissions, Petitioner relied upon Rule 14(5) of Companies (Appointment and Qualification Directors) Rules, 2014, wherein it is stated that an Application for removal of disqualification of Directors shall be made in Form DIR-10, which shows that the Companies Act, 2013 also recognise that the disqualification of Directors can be rectified; however, the said Rule or any other provision in entire Companies Act, 2013, does not prescribe procedure for removal of disqualification of Directors. Thus, it is submitted that the Petitioners should be allowed to remove their disqualification.

11) However, Condonation of Delay Scheme -2018, which was introduced by the Respondent vide General Circular 16/2017 dt. 29.12.2017, suggests that defaulting Companies which had been struck off or whose name has been removed from the Register of Companies, under Section 248 of the Companies Act, 2013 and which have filed the Petition for revival u/s 252 of the Act and received the order from the Adjudicating Authority for revival of that Company, shall be eligible for CODS – 2018. Thus, DIN of Directors of such Companies shall be activated only after receiving the order of restoration from the Adjudicating Authority subject to filing of pending Financial Statements and Annual Returns with the Respondent.

12) The Company undertakes to file all outstanding statutory documents along with the filing fees and the additional fees, as applicable on the date of actual filing within period of three months from the date of restoration of the Company on the MCA Portal.

13) We have perused the Report filed by the Respondent herein. The only contention of the Respondent herein is that the Company has failed to files its Annual Return and Balance Sheet for the year ended 2014-15 and 2015-16, which contravenes the provisions of Sections 92 & 137 of the Companies Act, 2013, which compelled the Respondent herein to believe that the Company was not carrying on any business or was not in operation.

14) Having considered the pleadings and upon going through the averments made in the present Company Petition, we are satisfied with the reasons shown by the Petitioners for restoration of the name of the Company in the register of companies maintained by the Respondent. We accordingly pass the following order.

ORDER

The Company Petition be and the same is allowed. The impugned order of RoC striking off the Company’s name is set aside. The prayer for restoration of the name of the Company in the register of companies is allowed. The name of the Company be restored in the Respondent’s Register of Companies, subject to the following.

i. The Appellant shall pay a sum of ₹. 50,000/- (Rupees Ten Thousand Only) towards costs of this Appeal, after taking into consideration size, operation and conduct of the Company. The payment of costs of ₹. 50,000/- (Rupees Fifty Thousand Only) shall be made in Bharatkosh thereby mentioning particulars as “payment of cost for revival of Company pursuant to orders of Hon’ble NCLT in Company Petition No. 687/252/MUM/2018”.

ii. The Registrar of Companies, Pune, is hereby directed to restore the original status of the Applicant Company as if the name of the Company has not been struck off from the Register of Companies and take all consequential actions like change of Company’s status from ‘struck off’ to Active (for e-filing), to restore and activate the DINs, if applicable, to intimate the bankers about restoration of the name of the Company so as to defreeze Company’s Accounts.

iii. The Petitioners shall within two months hence file all the pending Financial Statements and Annual and Statutory Returns with the Respondent as required under the Act and Rules made thereunder.

iv. The Company’s Representatives who has filed the Company Petition on behalf of the Company, is directed to personally ensure compliance of this order.

v. The Petitioners shall within 30 days deliver a certified copy of the order to the RoC, Pune.

vi. Upon compliance, the Respondent 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.

vii. 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 the date of striking off the name of the Company or in the interregnum.

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

15) With the aforesaid observations and directions, the Company Petition bearing CP No. 687 of 2018 is disposed of. Ordered Accordingly.