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Judgment
Learned Counsel for the appellant submitted that the appellant herein was carrying real estate business. Nevertheless, as it failed to comply with the provisions of Companies Act, 2013 inasmuch as it failed to file the financial statements in terms of the provisions of Section 92 at the company Companies Act, 2013 and annual returns as per Section 129A of the Act & other statutory documents before the Registrar of Companies due to which the appellant’s name was striked off from the register of companies maintained by RoC, on 30.06.2017. The salient grounds espoused in the captioned appeal preferred by the appellant on 20.02.2022 are as follows :
(a) As on the crucial date i.e. 30.06.2017, the appellant was operational and was carrying the business.
(b) There are creditors qua the companies towards whom the liability needs to be discharged by it.
To buttress the appeal, as on 30.06.2017 the company was operational, the Learned Counsel for the appellant referred to the income tax returns filed for the Assessment Years 2015-16, 2016-17 & 2017-18. He also made a reference to the balance sheet for the year 2017-18. As the appellant could pay income tax for the years 2015-16 to 2017-18, apparently, it was operational and was carrying the business. Paragraph 18F of the appeal reads thus:-
“That, the stakes of various persons are involved in the company and the director/shareholders of the Company have been receiving queries from the public and its clients regarding the status of the Company for continuing the services, hence it would be in the larger interest that the present petition be allowed by this Hon'ble Tribunal”.
We see from the appeal that the company is receiving queries from its shareholders qua its position. We have no reason to nix the plea raised on behalf of the appellant that it has liabilities to be discouraged towards the creditors.
Above all Ms. Shankari Mishra, Learned Counsel for the RoC categorically submitted that the RoC has no objection to the prayers made in the appeal subject to the condition that the company should carry out and comply with the statutory provisions. We have heard the Learned Counsels for both the parties and perused the records. As can be seen from Section 252 of the Companies Act, 2013 even striked off company can discharge, its liabilities and obligations as also can make claim regarding its dues. When such is the situation, there should be no difficulty in restoring the name of the company to the register of companies to meet such requirement. As noted herein above, the income tax return filed by the appellant is sufficient to show that the appellant company was in operation and was carrying the business. A company having liabilities and carrying business may be restored to the register of companies. In R. Narayanasamy Versus The Registrar of Companies, Company Appeal (AT) No. 171/ND/2020, the National Company Law Appellate Tribunal could held as under :
12…………….“Section 252 provides for relief to aggrieved parties when Registrar notifies a Company as dissolved under Section 248. When aggrieved entity is as provided in Sub-Section (3) reproduced above, it is clear that the name of the Company is required to be restored if the NCLT - (1) is satisfied that Company was at the time of its name being struck off carrying on business or in operation, (2) or, otherwise it is "just" that the name of the Company be restored to the Register of Companies.”
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“ I consider the grounds taken that there were litigations pending and thus the name of the Company was required to be restored. Hon'ble Member (Judicial) in his Judgement referred to particulars on this count as mentioned in Appeal before NCLT. Copies of some Judgements being relied on are filed with Diary No.24319. Counsel for Appellant referred to Judgement in the matter of "Indian Expositions Ltd. vs. ROC" Company Petition 185 of 2008 dated 21st April, 2010 passed by the Hon'ble High Court of Delhi in Company jurisdiction to submit that Hon'ble High Court held that when litigation was pending prior to the striking off the name of the Company, the name should be restored. The Judgement shows that, in that matter the Petitioner who moved the High Court as the Petitioner had an award in its favour but could not execute the same as the name of the Company was struck off. Reliance is also placed on the Judgement in the matter of "Umed Bhai Jhaverbhai vs. Moreshwar Keshav" reported in AIR 1954 MB 146. In that matter, the Applicant had money to recover from the concerned mill and Suit was pending to recover the amount when ROC struck off the Company. On the Petition of such Applicant and facts, the name was directed to be restored. Clearly, those would be persons relying on Section 252(1) of the Companies Act.”
Accordingly, the aforementioned appeal is allowed and the appellant-company is restored to register of companies subject to condition that it will comply with all the statutory requirement right from the year 2013 onwards.
It shall file all balance sheets/financial statements/annual returns from the year 2013 onwards and pay the requisite fee/additional fee as per law.
The appellant-company shall also be liable to pay the penalties, if any, payable in terms at extant rules and instructions.
The appellant-company is also directed to pay costs of Rs. 1,00,000/- to be deposited in Prime Minister Relief Fund within four weeks from today. The appellant shall fulfil the conditions as stipulated within 30 days. A copy of this order be sent to RoC.