Dr. Sanjeev Ranjan, Member (Technical)
1. The present appeal has been filed by the Mr. Dinesh Chandra Dobhal, Director on behalf of the Company i.e., M/s Adonis Buildprop Private Limited under Section 252(3) of the Companies Act, 2013 for restoration of name of the company, which was struck off by the Registrar of Companies, NCT of Delhi and Haryana (Respondent) vide Public Notice No.- ROC/DELHI/248(5)/STK-7/4865 dated 08.08.2018.
2. Brief facts of the case, as mentioned in the instant company appeal, which are relevant to the issue in question, are as follows: -
i. The Appellant-Company submits that the Company i.e., M/s Adonis Buildprop Private Limited bearing CIN: U45200DL2006PTC156084 was incorporated on 01.12.2006 in accordance with the provisions of Companies Act, 1956 having registered office situated at Lotus Tower Community Centre, New Friends Colony, New Delhi-110065.
ii. It is submitted that the company has an asset in the form of non-current investment and long-term loan & advances and under no circumstances it could be assumes that the company was not in operation. It is further submitted that as the appellant is a company and would like to revive the name of the company in order to pursue the main object.
iii. That the company was doing business at the relevant period and having income in the form of other income which can be evidenced from the audited balance sheet of the company for the period 2018 and 2020. The same is placed on record.
iv. The company holds the bank accounts as maintained with IDBI Bank having branch at C.R. Park, Delhi-110019. A copy of bank statement for the period 2017 to 2019 is placed on record.
v. The Company is having assets and liabilities and carrying out its business activities regularly, the company was regularly paying the tax to the Income Tax Department. A copy of Income Tax Return acknowledgment is placed on record.
vi. That the company is doing business and in operation wherein the vendor of the company has deducted the tax at sources and the same is reflected in annual tax statement of the company i.e., 26AS. A copy of 26AS of the Company is annexed with the petition.
vii. It is submitted that official entrusted with the responsibility of filing of documents had left the management and also did not inform the management about the filing status of the Annual Return and Balance sheet as a result the status of the filing were not in the knowledge of the Appellant.
viii. The Appellant stated that the Company is ready to file all the documents with the ROC but the same can be filed only after restoration of name of the company in the register of companies maintained by RoC.
ix. The appellant declares that it had not previously filed any application, writ petition or suit regarding the subject matter before any court of law or NCLT or any other authority.
3. Vide order dated 22.08.2023, Learned Counsel for the appellant was directed to serve a copy of the appeal to the ROC. In compliance of order dated 22.08.2023, an affidavit of service dated 06.09.2023 has been filed by the Appellant confirming that copy of the application was duly served to the RoC and Income Tax Department.
4. The RoC in its reply dated 29.09.2023 stated that the action of striking off of the present company was legal and justified and was the result of the operation of the law, as the company was not carrying on any operation for a period of two immediately preceding financial years.
5. Further, it has been submitted that if the application for restoration of name of the company is considered, the Appellant-Company be directed to file its all pending annual returns and balance sheet along with requisite additional fees as per law.
6. We observe that the Appellant, in order to sustain their case, have placed reliance on the following documents: -
a. Copy audited financial statement for the Financial Year 2017-2018 and 2018-2019.
b. Copy of ITR acknowledgment for the Assessment Year 2015-2016, 2017-2018, 2018-2019, 2019-2020, 2020-2021 and 2021-2022.
c. Copy of bank statement for the period 01.03.2018 to 31.03.20218.
7. At this juncture, it will be advantageous to examine the requirement of Section 252 (3) of the Companies Act, 2013 insofar as grant of relief to the applicant is concerned. The Section 252(3) of the Act is reproduced below for better appreciation:
“252. Appeal to Tribunal. –
(1) .........................
(2) .........................
(3) If a company, or any member or creditor or workmen 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 subsection (5) of Section 248 may, if satisfied that the company was, at the time of its 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, 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.”
8. A bare perusal of the aforesaid provisions shows that if company or any member or creditor feels aggrieved by the order of Registrar notifying a company as dissolved under section 248 of the Companies Act, 2013, they would be competent to file an application against the order of the ROC before the expiry of twenty years from the date of publication of striking off order in the Official Gazette. Sub-section 3 of Section 252 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 ROC, namely:
a. That the company at the time 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.
9. In connection with the non-filing of statutory records, it is pertinent to refer to the findings of Hon’ble High Court of Delhi in the matter of Mace Platronics Pvt. Ltd. Vs. ROC, reported in (2010) 104 scl 277 (Del), wherein it was held that:
“When the name of the company was struck off after following the prescribed procedure for non-filing of statutory records, even though the contentions of the company that the officials entrusted with responsibility of filing documents had failed to do so cannot be accepted, yet since the company was a running company and the application had been filed in time, the court had power to restore the name of the company.”
10. Hence, upon considering the facts and circumstances of this present petition, this bench is of the view that, it would be just and fair to order restoration of the name of the struck off Company namely M/s Adonis Buildprop Private Limited in the Register of Companies maintained by the ROC.
11. Accordingly, this Petition is allowed. The Restoration of the Company’s name to the Register of Companies maintained by the ROC, is hereby ordered, subject to the following directions: -
a. The restoration of the Company’s name i.e., M/s Adonis Buildprop Private Limited, subject to the payment of cost of Rs. 50,000/- (Fifty Thousand Only) to be paid to the Registrar of Companies, NCT of Delhi and Haryana. The name of the said Company shall then, as a consequence, stand restored to the Register of the Registrar of Companies, as if the name of the Company has not been struck off in accordance with Section 248(1) of the Companies Act, 2013.
b. The Registrar of Companies, NCT of Delhi and Haryana (Respondent) is directed to restore the original status of the Company M/s Adonis Buildprop Private Limited as if the name of the Company has not been struck off from the Register of Companies with resultant and consequential actions like changing status of the Company from ‘struck off’ to ‘Active’.
c. The Appellant is directed to file all pending statutory documents including Annual returns for the financial years in default along with prescribed fees/additional fee/fine as prescribed under the Companies Act, 2013 within 45 days from the date on which its name is restored on the Registrar of Companies by the ROC, NCT of Delhi and Haryana (Respondent).
d. The Appellant is directed to submit a certified copy of this order to ROC, NCT of Delhi and Haryana within thirty days (30) of the receipt of this order.
e. This order is confined to the violations, which ultimately leads to the impugned action of striking off the name of the Company M/s Adonis Buildprop Private Limited, and it will not come in the way of Respondent to take appropriate action(s) in accordance with law, for any other violations/offences, if any, committed by the said Company prior or during the period the said Company prior or during the striking off of the said company.
12. Resultantly, the present appeal i.e., Company Appeal No. 144/252/ND/2023 stands allowed with aforesaid terms.
13. Let the copy of the order be served to the parties.
14. File be consigned to records.
