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Judgment
This appeal is filed by the company, M/s Solitaire Apartments Private Limited (for brevity the ‘Company’), through its Director, Mr. Rajan
Sharma, under Section 252(1) 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 under the provision of Companies Act, 1956 with the Registrar of Companies, NCT of
Delhi and Haryana on 03.04.2008 having CIN U45200DL2008PTC176318.
The company is having registered office at K-12 B, Second Floor, Lajpat Nagar, New Delhi-110024.
Authorized share capital of the Company is Rs.1,00,000/-divided into 10,000 equity shares of Rs.10/- each and issued, subscribed and paid up share
capital of the Company is Rs.1,00,000/- divided into 10,000 equity shares of Rs.10/- each.
The main objects of the company are:
i. To build construct own the apartments to provide for the maintenance of the apartments to obtain all license regarding construction owning and
doing the necessary maintenance of the apartments. To sell the apartments as per the prevalent laws following all the rules regulations.
And other main objects.
As per the notice of non- compliance of provisions of the Companies Act, 2013 in respect to filing of annual returns and financial statements since
incorporation, 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 Appellant has submitted that the company was in operation and the business activities were carried out by the company during the period of
striking off but the reporting of such activities through Annual Returns and Financial Statement had not been filed with Registrar of Companies due to
inadvertence on part of the management.
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 and hence not afforded any opportunity of being heard 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 Appellant has brought forward the following facts about it being in operation and functional during the period of striking off:
i. The copies of financial statements of the company for the financial years from 31.03.2012 to 31.03.2017. The Balance Sheet as on 31.03.2017
reflects fixed assets of Rs. 98,59,059/- and loss of Rs. 15,523/-.
ii. The copy of two sale deed, dated 04.04.2008 executed between Mr. Atul Mudgil as seller in favour of the appellant company, for the property
situated at Sector-15, Part II, Urban Estate Gurgaon, Haryana admeasuring about 900 square meters as claimed in the sale deed, which is also
reflected in the balance sheet of the year 2016-2017.
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 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 Assessee 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.
Further, relying on the following Judgement, namely, order of Honourable High Court of Delhi in Company Petition No. 174/2013 dated
02.12.2013, which in brief reflects the following:
“The Court is of opinion that it is “otherwise just†that the company be restored to the register in case of an immovable property,
restoration can be ordered.â€
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.
The Section 252(3) 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 Registrar of Companies 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.
The Appellant have submitted sufficient evidence that it has been in operation since incorporation and therefore could not be termed as defunct
company. Thus, taking into consideration the provisions of Section 252(3) 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 company deserved to be restored.
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 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(1) of the Companies Act, 2013.
The appeal is disposed of accordingly.
Let the copy of the order be served to the parties.