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Judgment
O R D E R
Heard Mr. Shikhil Suri, Learned Counsel for the Appellant and Mr. Kamal Kant Jha, Learned Sr. Panel Counsel for Gov.t. of India.
The present Appeal has been filed under Section 421 of the Companies Act, 2013, (hereinafter referred to as ‘The Act’) against the Impugned Order dated 21.11.2019, whereby the Application filed on behalf of the Appellant under Section 252 of the Act for restoration of the Company namely ‘Trinity Leisure Private Limited’ to the register of the Registrar of the Companies (‘RoC’) which was rejected by the National Company Law Tribunal, Mumbai Bench (hereinafter referred to as ‘NCLT’) in C.P. No. 1850/252/MB/2019.
It was submitted by Mr. Suri, Learned Counsel for the Appellant that despite the fact that the Appellant Company was doing some business ofcourse not generating fund, the Learned NCLT ignoring those fact has passed the Order contrary to the provisions contained under Section 252 of the Act and as such Order requires interference. He further submits that the Company intend to do its business and accordingly this Tribunal may allow the Appeal and direct the RoC to restore the name of the Company to its Register.
Mr. K.K. Jha, Sr. Panel Counsel for Gov.t of India has opposed the prayer and submits that there is no material on record to show that Company was doing any business two years prior to strucking off Order. According to him there is no error in the Impugned Order.
On examination of the Impugned Order it is difficult to agree with the submission for Learned Counsel for the Appellant that the Company was doing any business. It would be just and proper to reproduce paragraph 7 & 8 of the Impugned Order which reflects the fact that the Company was not doing any business and as such there was no reason for allowing the Appeal. Paragraph 7 & 8 of the Impugned Order are being reproduced below:
“7.Upon perusal of the documents, affidavits submitted by the appellant company, it is noted that company had not filed statutory returns with ROC as there were no major business opportunities for the Petitioner company. From the perusal of the financials it clearly indicates that there are no business operations and no assets. Further it is also noted that the Fixed assets are Nil, Long-term Borrowings Nil, Short Term Borrowings nil, Income from operations nil; expenses towards cost of materials Nil, employee benefits expenses nil for the financial years as at 31st March 2013-2014 to 2017-2018 as per the documents submitted by the petitioner company. As per the Income Tax Returns submitted for the assessment Years 2014-15 and 2017-18, the gross total income was shown as Nil. The Paid-up capital of the Company is only Rs. 1 lac as on 31.3.2017. 8. All the above ‘Nil’ figures and factual details substantiate the criteria that the company is not carrying on any business or operation as defined under section 248 of the Companies Act 2013 therefore, the action taken by ROC is justified and the Bench did not find any ground to interfere with action of striking off the name of the Company by ROC. The Bench is also of the considered view that these type of companies only put burden on the system, Government/ROC, by way of record keeping, ensuring compliance by these companies and at times these companies may be used for various purposes other than the purpose/object for which the company was originally incorporated. It also puts burden on the company to comply with various regulatory/statutory compliances.”
It is evident that the Company was incorporated only on 05.12.2013 however from the first Financial Year i.e., Financial Year which ended on 31.03.2014, no Return was filed to the RoC same continued in the Year 2015, 2016, 2017 & 2018, which is reflected from Paragraph 3 of the Impugned Order.
Subsequently, Notice was issued by the RoC while exercising power under Section 248 of the Act. Thereafter STK-5 Notice was placed on Ministry of Corporate Affairs (‘MCA’) Portal on 19.07.2018 and the same was published in two leading Newspapers viz. ‘Times of India’, English Newspaper and ‘Maharashtra Times’ vernacular language Newspaper on 21.07.2018. Since this Notice also remained un-responded, finally on 11.09.2018, the name of the Company was struck off and it was published on the MCA website on 12.09.2018 vide STK-7 Notice. It has not been alleged that while strucking off the name of Company any Procedural Defect was done. Thereafter, if the Appellant was in a position to satisfy the NCLT that the preceding two years of date of struck off, the Company was doing business only then the NCLT was required to pass the Order in favour of Company. However, in absence of those facts which have been incorporated in the Impugned Order by the NCLT, we do not find any defect in the Impugned Order warranting interference.
Accordingly the Appeal stands dismissed.