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Judgment
Hemant Kumar Sarangi, Member (T)
This appeal is filed by the Director Mr. Suresh Kumar Gupta and Mr. Vikas Gupta, who are the promoters cum directors cum shareholders of Turbo Lubes and Greases Private Limited (for brevity the 'Company'), under Section 252(1) of the Companies Act, 2013 (for brevity 'the Act') read with Section 87A of the NCLT (Amendment) Rules 2017 (18 Of 2013) against the order of striking off of 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 27.04.2017 vide public notice no. ROC-DEL/248/STK-5/721 by Registrar of Companies, the respondent herein.
The company was incorporated as a Private Limited Company under the provision of Companies Act, 2013 with the Registrar of Companies, NCT of Delhi and Haryana on 08.02.2006 having CIN U23201DL2006PTC146077.
The Company is having its registered office at 17-18, Damodar Park, GT Road, Shahdara, Delhi. The Authorized share capital of the Company is Rs. 5,00,000/- and Issued, Subscribed and Paid up share capital of the Company is Rs. 1,00,000/-
The main objects of the company are:
a) To carry on the business in India or elsewhere the business to produce, manufacture, treat, mix, manipulate, refine, extract, reuse, process, transport, prepare, remove, finish, clean, buy, sell, import, export, pack, repack, wholesale, retail, distribute and to act as agent, broker, vendor, consultant, consignor, contractors, job worker, collaborator or otherwise to deal in all kinds and classes of lubricating devices, oils, materials, compounds, additives, chemicals, greases, pasters, compositions, synthetic break fluids and petroleum products whether used in industries, households, business, defence, aviations, transport, communication, power or for any other purpose whatsoever.
b) To act as dealers and or distributors or for petroleum companies.
As per the notice of non-compliance of provisions of the Companies Act, 2013 in respect of not carrying on any business or operation for a period of two immediately preceding financial years and filing of annual returns and financial statements, 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 the following transactions in respect of the company being operational and the business activities being carried out by the company during the period of striking off :
a) The audited financial statement of the company as on March 31st, 2017.
b) The copy of Bank Statement of Canara Bank of the Appellant Company for the period from 31/03/2006 to 27/11/2007 has been annexed with the petition.
c) The Appellant No. 2 and Appellant No. 3 being the directors signed a Memorandum of Understanding (hereinafter referred to as MoU), dated 03.06.2005 with Bharat Lubricants Private limited for purchase to purchase fixed assets of the manufacturing units of Bharat Lubricants Pvt. Ltd., mortgaged with Uttar Pradesh Financial Corporation under a Joint Sale Permission dated 26.02.2005.
d) The Uttar Pradesh Financial Corporation approved and issued a onetime settlement cum sale permission for a value of Rs. 94 Lakhs on 28.01.2006 in favour of Bharat Lubricants Pvt. Ltd. Considering the Earnest Money Deposit (EMD) for an amount of Rs. 5.39 Lakhs and Rs. 401 Lakhs deposited by Appellant No. 2 and Appellant No. 3.
e) The Appellant No. 2 and Appellant No. 3 took over the physical possession of the manufacturing unit on 28.01.2006 and are still in possession of the same.
f) The Appellant No. 2 and 3 incorporated the Appellant No. 1 Company for the sole motive of doing business activities and to run the manufacturing unit.
g) The appellant company deposited Rs. 22.90 Lakhs through Demand drafts and cheques for one time settlement cum sale permission till 31.03.2007 which was en-cashed for transfer of mortgaged documents in favour of the Appellant Company and to issue NOC to complete the statutory requirements to run the manufacturing unit.
h) The said payments were acknowledged and further demand notices were issued to the Appellant Company for the balance payment towards OTS cum sale permission.
i) Demand notices dated 08.02.2008 and 16.02.2008, were issued by the Uttar Pradesh Financial Corporation to the appellants. The appellant company on receipt of the demand notices deposited Rs. 5 Lakh out of 94,873,844/- on 28.01.2008 and 31.01.2008. Further, also deposited Rs. 89,83,844/- towards full and final balance of one time settlement on 05.03.2008.
The public notice was published by the ROC-Delhi, at the website of Ministry of Corporate Affairs, wherein the name of the Appellant Company was mentioned. The ROC proposed to remove/strike off the name of the appellant company unless a cause has been shown to the contrary within 30 days from the said Public notices.
The appellants have stated that no notice under section 248(1) of the Act in the form of STK-1 was served through physical mode to the Company or any of the directors of the company on their behalf and hence they were not afforded any opportunity of being heard before striking off of the name of the company. The appellant also had no knowledge of the same. The appellant failed to make representation to the ROC- Delhi and could not file Annual Returns and Financial Statement within the stipulated period of time.
The appellant company has voluntarily admitted that it has not filed its Financial Statement for consecutive ten years from 2006 to 2016 due to the lack of proper professional guidance, oversight, inadvertent reason and without any mala fide reasons, consequently, due to non filing of such Financial statements and Annual Returns, name of the Appellant Company was struck off by the Registrar of the Companies, NCT of Delhi & Haryana from its Register of Companies pursuant to provisions of Section 248 of the companies Act.
However, without going into the controversy of the lapses, 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, 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 of the name of the company as a better remedy.
It is further submitted by the Appellant that in case the name of company is restored the company shall be able to continue the work, which in turn shall benefit the Central and State government in terms of Income tax, Goods and Service tax and other taxes. Also, it is manifestly established that by no stretch of imagination it could be said that the Appellant Company is defunct or non-operational or dormant company within the meaning of Section 248 of the Companies Act, 2013.
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 are no outstanding dues against the assessee company and hence has no objection to the revival of the name of the company.
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 during the period of striking off 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 off 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.