Vipin Automobiles Pvt. Ltd. And Ors vs Registrar Of Companies, NCT Of Delhi

Dr. Deepti Mukesh, J

This appeal is filed by Vipin Automobiles Pvt. Ltd. (for brevity the 'Appellant No. 1'), through its director Mrs. Shakuntala Aggarwal, under Section 252(1) of the Companies Act, 1956 (for brevity 'the Act') against the order passed by the Respondent striking off the name of the Appellant Company from the records vide Public notice No. ROC-DEL/248/STK-5/721 dated 27.04.2017 and ROC/DEL/248(5)/STRK-7/2879 dated 30.06.2017 in exercise of its power under Section 248(5) of the Companies Act.

Vipin Automobiles Pvt. Ltd. is a company incorporated on 16.03.1993 under the provisions of Companies Act, 1956 as a private limited company with the Registrar of Companies NCT of Delhi and Haryana and having its registered office at 33, Busrurkar Market, Moti Bagh, New Delhi-110021, with CINU34100DL1993PTC052602. The Authorized share capital of the Company is Rs. 60,00,000/- and Paid up Capital of the company is Rs. 39,52,000/-.

The main objectives of the Company is to carry on the joint family transportation business and also other business as marketing agents, traders, suppliers, commission agents, indenting agents, liaison agents, wholesellers, importers, exporters, buyers, sellers, distributors, stockists, dealers, warehousing and storage agents of goods and merchandise of any description etc.

In and around September 2010, the Dispute arose among the Directors and the same was first reported to the DSC issuing authorities vide email dated 15.09.2010. Complaint was made in the year 2011 and was registered vide FIR No. 213/2011 before the Economic Offences Wings Delhi Police, which is still pending.

Due to the ongoing investigation, into the affairs of the company, the statutory records were not filed since financial year ending 31.03.2012, as a result the Respondent struck off the name of the Appellant Company vide Public notice No. ROC-DEL/248/STK-5/721 dated 27.04.2017 and ROC/DEL/248(5)/STRK-7/2879 dated 30.06.2017. The appellants submit that the financial statements and records of the company were not in their custody and were in possession of the other directors against whom the FIR had been lodged.

The Appellant company has received a notice dated 28.03.2019 under section 148 of the Income Tax Act from the Income Tax Authorities regarding the assessment of tax for the year 2012-13, the appellant responded to the said letter vide reply dated 19.05.2019 and requested for an opportunity to deposit the taxes.

The appellants submits that the company is a going concern and was earning substantial income before it got struck off and is ready and willing to file all documents as required by the Companies Act, 2013. Furthermore, the name of the company got struck off since the mandatory compliance was not completed by the company. The appellants could not file the documents as they were not in possession of the documents as the police investigation was going on and the board of the company was taken over by the accused persons against who the FIR had been registered, which is still pending and which was as per the appellant was informed to the ROC.

The appellants submitted that they had been preparing the audited books of accounts and previously never defaulted in filing any documents. Further, no opportunity was given to the appellants to bring out the fact that the relevant documents were in custody of the accused persons and had been retained by the investigating agency. The Appellant No. 2 submitted that he undertakes to rectify the error on behalf of the Appellant Company and file all relevant documents.

The appellant submits that striking off can be done after complying with the provision of Section 248 of the companies Act, 2013. Further, the appellant did not receive any statutory notice in Form No. STK-7 under Section 248(1) of the Companies Act 2013, prior to striking off the name of the Appellant Company from its register. No opportunity was given to make representations along with copies of the relevant documents within a period of thirty days from the date of notice owing to which the appellant were to be afforded a reasonable opportunity of being heard and to show cause.

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, 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:

a) The copies of Financial Statements of the Company for the financial years from 31.03.2011 to 31.03.2019 have been attached herein. The Balance Sheet as on 31.03.2016 and 31.03.2017 reflects Rs. 9,50,610 as the revenue from fixed deposits.

b) Notice under Section 148 of the Income Tax Act, 1961 for the Assessment Year 2012-13 was issued on 28.03.2019.

c) The copy of form 26A for the financial year financial Years 2008 to 2017 have been attached herewith reflecting Rs 10,70,641/- paid in the financial year 2015-16 and Rs. 9,50,610.00/- paid in the financial year 2016-17.

d) The copy of FIR No. 213/2011 is pending before the CMM (South), Saket courts, wherein vide order dated 14.04.2015, the Ld. Court issued search warrant against the directors of the appellant company, which is still pending consideration. Thus from 2011 till 2017 various proceedings are pending, proving that the company was in operation.

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 operations and the Company be also directed to file financial statements up to date with appropriate and additional fees.

The Income Tax Department has not filed its report and the Form 26AS reflects that no outstanding tax is pending against the assessee.

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:

a) That the company at the time of its name was struck off was carrying on business.

b) Or it was in operation.

c) Or it is otherwise just that the name of the company be restored on the register.

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 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. Further it is seen that due to pending aforesaid litigation, the survival and functioning of the company was jeopardized. It is established from various judgments that pending litigations can be considered as valid and just reason to revive the company as cited in order of the Honourable High Court of Delhi in Company Petition 406/2009 dated 04.06.2010; Honourable High Court of Guwahati in Company Petition 24/2012 dated 05.06.2017; order of Honourable High Court of Delhi in Company Petition No. 200 of 2011 dated 08.02.2012, and order of Honourable High Court of Delhi in Company Petition No. 185/2008 dated 21.04.2010, which held as under:

"When litigation is pending by or against a company, it is only proper that its name be restored to the Register to enable the matter to be carried to its logical conclusion" Hence, there exists a "just" ground for the restoration of the name of the appellant company in the Register of Registrar of Companies.

The Appellant have submitted sufficient evidence of pending litigation that it has been in operation during the period of striking off and therefore could not be termed as a 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 Registrar of company is directed to restore the company's name in their Register subject to its filing of all the relevant documents 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 and also proceed to take such other and further penal action against the appellants in accordance with statutory provisions. The name of the Appellant Company and its directors shall then, as a consequence, stand restored to the Register of the Registrar of Companies, as if the name of the company and its directors 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.