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Judgment
Present appeal is preferred u/s 252(3) of the Companies Act, 2013 by the Company against the order published on 07.06.2017 vide Public notice
No- ROC-DEL/248(5)/STK-7/2879 striking off the name of the Appellant Company. The Registrar by invoking the provisions of Section 248 of the
Companies Act has struck off the name of the Appellant from its register vide notification dated 30.06.2017 where the name of the Appellant figures
at serial No. 15547.
The appeal is filed through its Authorised Representative Mr. Sukhwinder Singh and Mr. Sourabh Batra (Company Secretaries) with the consent of
Mr. Rajesh Bhandari and Mr. Harender Kumar who are the Shareholders and Directors of the Company. The Company was incorporated under the
Companies Act, 1956 on 26th April, 2010 vide CIN: U74200DL2010PTC202005, as a Private Company Limited by Shares with the Registrar of
Companies, Delhi & Haryana having its registered office at B - 529, M1G Flats, East of Loni Road, Delhi -110093.
The Memorandum and Articles of Association of the Company are also placed on record and marked as Annexure- A3.
The Main Objects of the Company are:
A. To Construct, execute, carry out equip, improve, alter, develop, decorate, maintain, and furnish public and private constructional and civil works and
convenience of all kinds including railways, ropeways, roads, bridges, tramways, docks, harbours, piers, wharves, canals, reservoirs, embankments,
tanks, aqua ducts, marine works, powerhouses, irrigations, reclamations, improvements, sewage, drainage, sanitary, waste gas, electric lights,
telephonic, telegraphic telecommunication, gas pipe lines and power supply works, hotels, warehouses, markets, bazaars, places of amusement,
pleasure grounds, parks, gardens, swimming pools, water sewage and effluent treatment plants, shops, offices, flats, house, factories and mills,
buildings, OFC works and all other work of conveniences or other public or private utility.
B. To erect and construct houses, towers, building or civil engineering, electrical and constructional works of every description on any land of the
company or upon any other land or immovable property and to pull down, rebuild, enlarge, alter and improve existing houses, buildings, or works
thereon to convert and appropriate any such land into and for roads, streets, squares, gardens and such other conveniences related thereto and
generally to deal with and improve the immovable property of the company or any other immovable property.
The authorised share capital of the Company is Rs. 50,00,000/- (Rupees Fifty Lakhs only) divided into 5, 00,000 (Five Lakh only) equity shares of
Rs.10/- (Rupees Ten each). The Issued, Subscribed and Paid Up Share Capital of the Company is Rs. 50,00,000/- ( Rupees Fifty Lakh only) divided
into 5,00,000 (Five Lakh Only) number of equity shares of Rs. 10/-(Rupees Ten) each.
The Company has the Five Directors who are also the Shareholders of the Company. List of last Directors and Shareholders of the Company is
annexed in the Appeal and marked as - Annexure-A4 and Annexure -A5.
It is also submitted by the Appellant that the Company employs large number of workers, both skilled and un skilled and total employees benefit
expenses incurred during the financial year 2016-17 are Rs. 61,47,244/ - and for year 2015-16 is Rs. 72,91,548.
It is observed that due to non- compliance with respect to filing of annual returns and financial statements for the last two years, 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.. However, the Company has brought forward the following facts about it
being in operation and functional during the period of striking off:
i) Copy of the Income Tax Returns with Acknowledgement receipts for the Financial Years 2011 12 to 2017-18, which reflects the tax payment
during 2016-17 of Rs.7,62,408/-.
ii) Copy of Bank Statement of Accounts issued by HDFC Bank, New Delhi (Branch Code 1566) showing transaction details and status of Company
as active for the period 01.04.2016 to 01.03.2017. The Statement of Account issues by the Corporation Bank, Noida for the period 03.04.2017 to
10.08.2017. The transactions of appellant involved during the period were substantial amount being in the range of Rs.15-20 lakhs.
iii). Audited Balance Sheets of the Company for the Financial Years 2011-12 to 2016-17 which reflect the substantial entries of assets, expenses,
profit &loss, cash balance, bank balance and revenue.
iv) Monthly contribution challan towards Employees State Insurance Corporation for the months of May 2016 to March 2017 and also towards
Employees Provident Fund Organisation for the months of April 2016 to April 2017 are also on record.
vi) A copy of orders from TATA COMMUNICATIONS for the period August 2016 to November 2016 has also been attached. The Company had
substantial orders from Greater Noida Industrial Development Authority.
It is submitted by the Appellant 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 Company and on part of the Professional who was hired to do the same and as such there was no
wilful or mala-fide motive behind non filing of the Financial statements and Annual returns.
As claimed by the Appellant, it is seen that the Company has been functioning during the period when the name of the company was struck off on
07.06.2017 from the documents filed by the Appellant. However, even though it will not absolve the Appellant from filing the necessary statutory
returns and documents and adhere to the provisions of Companies Act, 2013 or for that matter Companies Act, 1956, as an onus is placed on the
Appellant to strictly comply with the provisions of the Companies Act 2013. In the instant case the Appellant has demonstrated mitigating
circumstances for restoration that it was in operation on the date it was struck off .Thus, taking into consideration the provisions of Section 252 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 Respondent ROC in its report has stated that it has no objection if the name of the Company is restored in the Register of Companies on the
undertaking that the Company be directed to prove that it was carrying on business or was in operation and The Company be also directed to file
financial statements Up to date.
The report of the Income Tax Department has been filed on 12.03.2018 and upon perusal of the same it has been observed that no adverse
observation is recorded. The Income Tax Department has also annexed ITR Acknowledgements for the assessment Year 2013-14 to 2017-18 of the
Appellant with their Report.
A perusal of the aforesaid provisions shows that any person aggrieved by the order of the Registrar, notifying a company dissolved under Section
248 is competent to file an appeal to the National Company Law Tribunal. If a company or any member or creditor feels aggrieved, they would also
be competent to file an appeal against the order of the ROC before the expiry of twenty years from the date of publication of order in the official
gazette. Sub section 3 of Section 252 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 Roc 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.
Applying the aforesaid principles to the facts of the present case, it can be seen from the overwhelming evidence/documents adduced by the
Appellant that it was carrying on the business at the time its name was struck off from the register of companies.
As a sequel to the aforesaid discussion it is seen from the documents available on record that the company was carrying on its business and was
operative at the time of its name struck off from the register. The assumption of Registrar of Companies that the company was not in operation was
clearly erroneous. Besides it is seen that the appeal has been filed within the stipulated period prescribed under Section 252 of the Act. Needless to
say that ROC has raised no specific objection against the restoration of the Company subject to filing of financial statements up to date. Besides
nobody would be prejudiced by the restoration of the company. On the contrary the restoration is clearly in the interest of the company. Since the
company is a running concern znd the application has been filed on time, the Tribunal clearly has the power to restore the name of the Company. In
this factual background and in the interest of justice the appeal filed by the Appellant Company deserves to be allowed.
Accordingly, this appeal is allowed. The Public Notice dated 30.06.2017 in so far as the name of the Appellant Company is hereby declared illegal
and set aside. The restoration of the company's name to the Register will however be subject to its filing of all outstanding documents with proper
filing fees along with additional fees required by 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 on the payment of cost of Rs.25, 000/- to be paid to the Prime Minister
Relief Fund (PMRF). 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(5) of the Companies Act, 2013.
The appeal stands disposed of.
Let the copy of the order be served to the parties.