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Judgment
This appeal is filed by the company, M/s Shivasom Developers Private Limited (for brevity the 'Company), through its director, Mr. Radhakishan
Gupta, under Section 252(3) of the Companies Act, 2013 (for brevity the Act') against the order of striking off the name of the company passed by the
respondent under section 248 (1) of the Act read with Rule 7 of Companies (Removal of Names of Companies from the Register of Companies)
Rules, 2016 published on 30.06.2017 vide notification no. ROCDEL/248(5)/ STK-7/2879 by Registrar of Companies, the respondent herein.
The company is incorporated as a Private Limited Company with the Registrar of Companies, NCT of Delhi and Haryana under the provision of
Companies Act, 1956 on 15.06.2006 having CIN U70109DL2006PTC149754.
The company is having registered office at 15 C, Pocket A, MIG flats, Outer Ring Road, Vikaspuri Extension New Delhi110018.
The Authorized capital of the Company is Rs.15,00,000/- divided into 1,50,000 equity shares of Rs.10/- each and issued, subscribed and paid up
capital of Rs. 1,00,000/- fully subscribed divided into divided into 10,000 Equity Shares of Rs.10/- each.
The main objects of the company are:
i. To acquire by concession, grant, purchase, batter, lease, license, hire or tenancy with or without take over option or otherwise, to hold, develop,
renovate, design, furnish, erect, construct, alter, enlarge, pull down, remove, or replace, manage, work, assign, enfranchise, let on lease, remove or
replace, manage, work, assign, enfranchise, let on lease, royalty or tribute, grant licenses, easements, options and other rights over and in any other
manner deal with or dispose all type of lands, plots, buildings, hereditaments, bungalows, quarters, officers, flats, hotels, farmhouses, warehouses,
godowns, bridges, highways, industrial and other parks, estates, assets and properties moveable and immovable, freehold or leasehold or whatever,
nature and description and wherever situated and to join with any person or company in doing may of the above operation.
As per the notice of non- compliance of provision of the Companies Act, 2013 in respect to filing of annual returns and financial statements since
financial year 2013, 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.
The appellants have stated that notice under section 248(1) of the Act in the form of STK-1 was received by the Company before striking of the
name of the company, however, the company could not file the required documents in time due to which the name of the company was struck off
from the Register of Companies.
The Appellants have brought forward the following facts about it being in operation and functional during the period of striking off:
i. The copy of Bank Statement of the company, issued by ING Vysya Bank from 01.04.2013 to 31.03.2015 having closing balance of Rs. 19,929/ -;
one issued by Kotak Mahindra Bank from 01.04.2015 to 18.03.2018 having closing balance of Rs. 20,429.75/- and one issued by ICICI Bank from
26.02.2013 to 31.03.2015 having closing balance of Rs. 20,114.10/-, reflecting various transactions done by the company during the period of strike
off.
ii. The copies of financial statements of the company for the financial years from 31.03.2014 to 31.03.2017. The balance sheet as on 31.03.2017
reflects Non-Current investment in form of investment in land amounting to Rs. 6,61,800/ -
iii. The copies of Income Tax Returns filed for the assessment year 2007-08 to 2017-18. The Income Tax Return for Assessment Year 2017-18
reflects business loss of Rs. 4,950/-
iv. The copy the sale deed for the piece and parcel of land situated at Khasra No. 212, Rajkori, Vasant Vihar, New Delhi, dated 01.12.2002, which is
still in possession of the company and is owned by the company.
It is further submitted by the Appellants 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 management and due to lack of professional guidance and as such there was no wilful or
mala-fide motive behind non-filing of the Financial Statements and Annual returns.
The Registrar of Companies has filed reply and stated that it has no objection if the name of the Company is restored on proving by the Company
that it was carrying on business or was in operation and the Company be also directed to file financial statements up to date with appropriate filing and
additional fees.
The Income Tax Department has submitted in its report that there is no outstanding demand against the Assesse and has no objection if the
company is considered for revival.
The grounds contemplated under section 252 of Companies Act, 2013, namely, that of the company carrying on business or was in operation at the
time of striking off its name, and where it appears ""just"" to the adjudicating authority that the name of the company is to be restored to the Register of
Companies. It is also seen from the perusal of the provisions under Section 252(3), that if Tribunal is of the opinion it is ""just"" that the name of the
company is to be restored to the register of companies maintained by Registrar of Companies, such orders can be passed for the name of the
company to be so restored. For reference, the provisions of Section 252(3) of the Companies Act, 2013 is extracted hereunder:
252(3) ""If a company, or any member or creditor or workman thereoffeels aggrieved by the company having its name struck offfrom the
register of companies, the Tribunal on an application made by the company, member, creditor or workman before the expiry of twenty years
from the publication in the Official Gazette of the notice under sub-section (5) of section 248 may, if satisfied that the company was, at the
time of its name being struck off, carrying on business or in operation or otherwise it is just that the name of the company be restored to the
register of companies, order the name of the company to be restored to the register of companies, and the Tribunal may, by the order, give
such other directions and make such provisions as deemed just for placing the company and all other persons in the same position as nearly
as may be as if the name of the company had not been struck offf rom the register of companies.
The Ld. Counsel for appellants has relied on the following Judgements, namely, order of the Honourable High Court of Guwahati in Company
Petition 24/2012 dated 05.06.2017; order of the NCLT Bench III in Company Appeal No. 127/252//ND/2018 dated 25.04.2018; order of Honourable
High Court of Bombay in Company Petition No. 6 of 1981 dated 06.04.1994, order of Honourable High Court of Delhi in Company Petition No.
174/2013 dated 02.12.2013; and order of Honourable High Court of Delhi in Company Petition No. 200 of 2011 which in brief can be summarised and
ratio can be drawn as follows:
In aforementioned decisions, while construing Section 560(6) of the Companies Act, 1956 which is pani materia to present Section 252(3), as
extracted above of the Companies Act, 2013, it has been held that the word ""just"" has to be understood in the background of the specific language of
the sub-section not on the basis of the principle of ejusdem generis. Further, the aforementioned judgements therein elucidates that apart from the
situation in which the company court can order restoration namely (i) when the company was carrying on business or was in operation at the time of
striking off its name there exists an alternative situation (ii) where it appears ""just"" to the company court that the name of the company be restored to
the register and that the rule of ejusdem generis will not apply because of the presence of the words ""or otherwise"" between the words thereby
providing for the following two types of situations. Further, the grounds for restoration as earlier provided Section 560(6) of Companies Act, 1956 has
been retained as such without any change by the Legislature from which the intention of Legislature can be clearly gathered in the present
dispensation as well. Furthermore, it is also seen that where litigations are pending and where immovable property rights are involved and in the instant
case also the facts vouch for the similar decision, it is only proper7 that the name of the company be restored to the Register of Companies. Hence,
there exists a ""just"" ground for the restoration of the name of the appellant company in the Register of Registrar of Companies.
Accordingly, this appeal is allowed. The Public Notice of Registrar of Companies striking the name of the company is set aside. The restoration of
the company's name to the Register of Registrar of Companies is ordered subject to its filing of all outstanding documents with proper filing fees along
with additional fees required under 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 subject to payment of cost of Rs. 25,000/- to be paid to Prime Minister's Relief Fund.
The name of the Appellants 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(1) of the Companies Act, 2013.
The appeal is disposed of accordingly.
Let the copy of the order be served to the parties.