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Judgment
Justice Anant Bijay Singh; The present Appeal under Section 421 of the Companies Act, 2013, has been filed by the Appellant being aggrieved and dissatisfied by the order dated 03.01.2022 passed by the National Company Law Tribunal (New Delhi Bench-II) in Appeal No. 116/252/ND/2021 whereby and whereunder Appeal filed by the Appellant against the striking off of the name of the company by the Respondent No. 1, the Register of Companies under Section 248 of the Companies Act, 2013 vide notification dated 29.10.2019 was dismissed by the Tribunal.
The facts giving rise to this Appeal are as follows:
The Appellant Company i.e. Shree Radhey Mines Private Limited was incorporated under the Companies Act, 1956 on 10.09.2007 having CIN: U12000DL2007PTC167938 limited by shares with the Registrar of Companies, NCT of Delhi and Haryana, having its registered office at New Delhi-110028. The Appellant Nos. 2 and 3 are the Directors of the Company since incorporation. The Authorised Share Capital of the Appellant Company is Rs. 5,00,000/-divided into 50,000 (Fifty Thousand Equity Shares of Rs. 10/- each) and Issued, Subscribed and Paid-up Share Capital is Rs. 5,00,000/- divided into 50,000 (Fifty Thousand Equity Shares of Rs. 10/- each).
ii) The main object of the Appellant Company was to deal with the minerals and mining activities. The Government of India from time to time had been prohibiting and restricting mining activities and as such the activities and the main business of the company had been stalled. The company had no income from the businesses and had been charging the depreciation and was amortizing expenditure and since financial year 2015-16 was incurring losses. After the liberalization of policies of the Government of India, the company had applied for GST certificate and was granted the GST Registration Certificate dated 03.12.2020 for Delhi Office and for Mehendergarh Office on 15.12.2020.
iii) The Government of India permitting the mining activities, the Appellant applied for Pollution License for AIR and was granted the same on 20.07.2020 and further the appellant company applied for AIR/Water pollution certificate to operate the mining activities on 20.03.2020. The said certificates are valid till 31.03.2024 and 19.03.2025. As per the policy of Government of India, when it had issued the notification for permitting mining activities, the appellant company applied for the mining license and the same was granted by the Department of Mines and Geology, Government of Haryana to the appellant company on 13.01.2021.
iv) The Company had received orders on 25.07.2021 for the supply of “Rodi & Dust” for an amount of Rs. 2,00,00,000/-.
The Companies Act, 2013 provides that the Registrar shall follow the mandatory provisions of the Companies Act and Rules before striking off the name of the company which has not been complied by the Registrar of companies.
vi) The Registrar of Companies had not followed the procedure as prescribed by Section 248 of the Companies Act, 2013. Firstly, the Registrar of Companies had not sent the three notices to the company as well as its directors. The directors have right to receive the individual notices but the Registrar of Companies, Delhi have sent notices to the company only and have deemed that the same shall also be served on the directors. The Registrar of Companies of other states are sending the notices to the directors individually under the Act and Companies (Removal of Names of Companies from the Registrar of Companies) Rules, 2016. Sending of notice under the above said rules is mandatory.
vii) The Appellant Company filed an Appeal under Section 252 of the Companies Act, 2013 seeking restoration of their name in the Register of Companies maintained by the Respondent No. 1 and after hearing the parties, the Tribunal passed the order impugned dated 03.01.2022 which led to filing of this Appeal.
The Learned Counsel for the Appellant during the course of argument and in the grounds taken in the memo of Appeal submitted that the Tribunal failed to appreciate the fact that as per the Section 248 and Companies (Removal of Names of Companies from the Register of Companies) Rules, 2016, the Respondent had not issued notices to the company and all its directors before striking off the name of the company. The Tribunal also failed to appreciate the fact that as per the sub-section (6) of Section 248, the Respondent had not passed any orders recording its satisfaction as required under the Section that sufficient provision had been made for realization of company’s assets and payment of liabilities. The Tribunal also failed to appreciate the fact that the company had not been working because of the Government of India’s restrictions in the working of the mining activities.
It is further submitted that the Respondent No. 1/Registrar of Companies as per the Section 248 and Companies (Removal of names of Companies from the Register of Companies) Rules, 2016, had not issued notices to the company and all its directors before striking of the name of the company.
It is further submitted that the Tribunal failed to consider the fact that if the name of the company is not restored, the property and the losses of the company would cause loss to the public who had paid their money for allotment of shares. Further, the Tribunal also failed to consider the fact that presently the company had obtained the entire mining license and the pollution control licenses besides the registration with GST.
It is further submitted that a sweeping action was initiated by the Respondent No. 1/Registrar of Companies at the instance of MCA in striking off the names of several Companies which had failed to file their Statutory Returns. The Appellant Company had failed to file its Financial Statements and Annual Returns since the Financial Year 2015-16, thereby giving rise to the surmise that the business of the company was not in operation. Further, the default in carrying out the statutory compliances submitted that the same was due to lack of communication with the practicing professional.
Based on above submissions, the impugned order is fit to be set aside and the instant Appeal be allowed.
On the other hand, the Respondent No. 1 / Registrar of Companies during the course of argument and in his reply stated that the Appellant Company has filed Annual Returns till Financial Year ended on 31.03.2016 and Balance sheet till Financial Year ended on 31.03.2015. Moreover, no subsequent documents had been filed by the Company with this Office to obtain the status of a “Dormant Company” under Section 455 of the Companies Act, 1956. Hence, this Office had reasonable cause to believe that the company was not in operation and therefore, the name of the company was considered for striking off from the Register of Companies. The Office issued the notice in the form of STK-1 on 18.07.2019 intimating the company and the directors of the company at their registered officed about the aforesaid defaults, providing them a fair opportunity to respond. Subsequently, this office also issued public notice for the same in the form of STK-5 dated 09.08.2019. Thereafter, the name of the company was struck off as per the provisions of Section 248(1)(c) of the Companies Act, 2013 read with Rule 9 of the Companies (Removal of Names of Companies from the Register of Companies) Rules, 2016 vide Notice in the form of STK-7 dated 29.10.2019.
It is further stated that as per records of the answering Respondent, neither the Appellant company was carrying out any operation for a period of 2 immediately preceding financial years, nor the company was able to produce before the Tribunal any just and equitable grounds for revival and therefore, their application was dismissed. It is further stated that the company was neither able to prove that it was carrying any business before it was struck off nor produced any just and equitable grounds for restoration before the Tribunal.
Learned Counsel for Respondent No. 2 has filed the reply in which it is stated that in connection with the case of Shri Radhey Mines Private Limited & Ors. PAN: AALCS1854Q is assessed by Income Tax Officer of ACIT 22(2), New Delhi stating No Objection with respect to the Appellant company in the present case. Further, the Appellant company has been regularly filing its Income Tax Returns. Also, no other proceedings are pending in the present case as per ITBA portal.
After hearing the parties and going through the pleadings made on behalf of the parties, we observe that the Appellant Company is having property/land and due to change of circumstances the Appellant Company has failed to file its Financial Statements and Annual Returns. Keeping in view of the above facts and considering that the Appellant Company is having substantial movable as well as immovable assets, it cannot be said that the Appellant Company is not carrying on any business or operations. Hence, we are of the view that the order passed by the National Company Law Tribunal (New Delhi Bench-II) as well as Registrar of Companies, NCT of Delhi & Haryana is not sustainable in law.
In view of the aforenoted, we set aside the impugned order dated 03.01.2022 passed by the National Company Law Tribunal (New Delhi Bench-II) in Appeal No. 116/252/ND/2021. The name of the Appellant Company be restored to the Register of Companies subject to the following compliances:
Appellant Company shall pay costs of Rs. 3,00,000/- (Rupees Three Lakh) to the Registrar of Companies, NCT of Delhi & Haryana within six (6) weeks from the passing of this judgment.
ii) After restoration of the Company's name in the Register maintained by the Registrar of Companies, the Company shall file all their Annual Returns and Balances Sheets. The Company shall also pay requisite charges/fee as well as late fee/charges as applicable.
iii) Inspite of present orders, Registrar of Companies will be free to take any other steps punitive or otherwise under the Companies Act, 2013 for non-filing/late filing of statutory returns/documents against the Company and Directors.
The instant Appeal is allowed to the above extent.
Registry to upload the Judgment on the website of this Appellate Tribunal and send the copy of this Judgment to the National Company Law Tribunal (New Delhi Bench-II), forthwith.