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Judgment
This appeal is filed by the company, M/s Sidhu Sister Developers Private Limited (for brevity the ‘Company’), through and along with its
director, Mr. Shailesh Bhushan, 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. ROC-DEL/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 04.03.2008 having CIN U45200DL2008PTC174868.
The company is having registered office at 1/24, Asaf Ali Road, Ground Floor, New Delhi-110002.
The Authorized capital of the Company is Rs.50,00,000/-divided into 5,00,000 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 carry on the business of Owners, Builders, Colonizers, Developers, Promotors, Proprietors, Occupiers, Lesser, Civil Contractors, Maintainer of
residential, commercial and industrial buildings, Colonies, Hotels, Mills and Factory sheds and building, workshop’s buildings, Multiplex, Malls
Buildings and to deal in the kinds of immovable properties and to deal in building material and electrical and civil materials.
And other main objects.
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 no notice under section 248(1) of the Act in the form of STK-1 was received by the Company or any of the
directors or any person on their behalf, before striking of the name of the company.
However, without going into the controversy of the latches in following the due procedure of law by Registrar of Companies before the final act of
striking off the name of the company from the register of companies maintained by Registrar of Companies, for non-filing of statutory documents by
company for the relevant period, through publication of notice on 30.06.2017, the appellants have preferred to prove with documents and records that
the company was in operation and doing business during the period of striking off the name of the company as a better remedy.
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 HDFC Bank from 01.04.2014 to 31.03.2017 having closing balance of Rs. 10,995/-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 Tangible Assets in form of land amounting to Rs. 4,23,84,105/-
iii. The copies of Income Tax Returns filed for the assessment year 2014-15 to 2016-17 as NIL Returns.
iv. The copy of the sale deed dated 26.06.2013 in favour of the company for the property admeasuring 01.21 Acres of land situated at 29, Thiruvallam,
Thiruvananthapuram.
v. The copy of the sale deed dated 11.04.2013 in favour of the company for the property admeasuring 1 Hectare 16.67 Acres of land situated at
Thandapper Pattah No. 38939, Thiruvallam, Thiruvananthapuram, which is still in possession of the company and is owned by the company.
vi. The copy of the sale deed dated 11.04.2013 in favour of the company for the property admeasuring 02.88 Acres of land situated at Thandapper
Pattah No.13388, Thiruvallam, Thiruvananthapuram.
vii. The copy of the sale deed dated 11.04.2013 in favour of the company for the property admeasuring 02.02 Acres of land situated at Thandapper
Pattah No. 24273, Thiruvallam, Thiruvananthapuram.
viii. The copy of receipt for payment of land tax as per Thandapper order No. 38954 dated 10.07.2018 reflecting land tax paid by the company of Rs.
2,320/- for all the property owned by the company in Thiruvananthapuram.
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 thereof feels aggrieved by the company having its name struck off from
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 off from 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 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; order of the NCLT, New Delhi Bench, in Company Appeal No. 127/252//ND/2018 dated 25.04.2018, the ratio wherein can
be summarised as follows:
In aforementioned decisions, while construing Section 560(6) of the Companies Act, 1956 which is pari 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 proper 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.