1. The Present Petition has been filed under Section 252 (1) of the Companies Act, 2013 (“Act”) by M/s. Keotsa Constructions Private Limited (“the Company”), through its Director Mr. Ashwin Khubchandani praying for restoration of the name of the Company in the Register maintained by the Registrar of Companies, Mumbai (ROC).
2. The Petitioner submits that the Petitioner Company has been incorporated for the business of construction and selling houses, undertake redevelopment of existing house, building, etc.
3. The Petitioner submits that the Company was incorporated on 28.04.1995 under the Companies Act, 1956. The Authorized share Capital of the Company is Rs. 1,00,000/- (Rupees One lakhs only) divided into 1,000 equity shares of Rs. 100/- (Rupees Hundred each) and the Issued, Subscribed & Paid Up Capital of the Company is Rs. 1,00,000/- (Rupees One lakh Only) divided into 1,000 number of equity shares of Rs. 100/- (Rupees Hundred each).
4. The Petitioner herein is the Director of the above mentioned struck-off Company. The Petitioner states that the Company has been active since incorporation and has also been maintaining all the requisite documentation, as per the provisions of the Companies Act, 1956 & 2013. The Financial Statements & Annual Return for the 2017-18, 2018-19, 2019-20 & 2020-21 of the Company were not filed due to inadvertent reasons.
5. The Petitioner submits that the Appellant Company is a “going concern entity” with entire focus on its business activities which is construction and selling houses, undertake redevelopment of existing house, building, etc. The Company has an extremely important ongoing projects duly sanctioned and approved by the relevant authority in Pune, Maharashtra. The project is of affordable housing development which is consciously planned targeting 6 economic affordable housing of building three towers consisting of total 196 apartments for the local community, in order to provide affordable housing to people with low-income group in the surroundings.
6. The Petitioner avers that while the Directors have been focused on operations of the Company; they relied on statutory auditors, being expert in the field, to take care of the necessary statutory requirements as per the laws of India including filing of the forms and ensuring all applicable compliance. Although the statutory auditor has confirmed that the compliance is duly taken care of, there seems to be some confusion as they did complete the Income tax filing and statutory audit. However, annual filing of accounts and annual report with the Registrar of Companies seem to be inadvertently missed out.
7. The Petitioners submit that the Company should be given a fair chance to submit all these reporting with applicable filing fees to regularize the default and make it good. The appellant Company will also ensure due compliance apart from operations of the Company, the appellant Company Board has no malafide intention or has not willfully defaulted on any compliance.
8. The Petitioner submits that Company has not received any notice from the Respondent (issued, if any) prescribed under Section 248 (1) of the Companies Act, 2013. Petitioner further submits that the appellant Company did not receive any show cause notice, nor was it accorded any opportunity of being heard before the aforesaid action was taken by the Respondent.
9. There were no unusual transactions carried out from the bank account of the Company during any period. The Company is neither a shell Company nor engaged into any illegal activities.
10. As per the Respondent, the Company has not filed its financial statement and annual returns as per the provision of the Companies Act, 2013 and hence, the Company had been considered for being struck off by the Registrar of Companies, Mumbai, in suo moto action under the provision of Section 248 of the Companies Act, 2013 and also in pursuance of the circulars issued by the Ministry of Corporate Affairs, Government of India, New Delhi. The Respondent states that the Company has failed to comply with statutory compliances under the Companies Act, by not filling its statutory returns for a continuous period of more than four years. It is submitted that the RoC/Respondent had issued a public notice in form STK-5 dated 20.12.2021 with it being published on the website on 16.04.2022 and in a leading newspaper (Times of India) and newspaper in vernacular language (Maharashtra Times-Marathi) seeking objections against the proposed striking off the name of the Company from the records of RoC.
11. In absence of any representation against the proposed striking off action, the Registrar (Respondent) struck off the name of the Company on 31.03.2022. The dissolution order was published on the website of Ministry vide STK-7 on 07.04.2022.
12. We have considered the plea of the Petitioner and the Respondent /RoC. The Petitioner is seeking restoration of its name in the Register as maintained by Respondent /RoC relying on ground that failure to file the annual returns and financial statements since Financial Year 2017-18 to 2020-21 was unintentional and it was not deliberate.
13. Upon perusal of the records placed, it is seen that the Company was struck off on 31.03.2022 by the Respondent/RoC. Taking into consideration the documents provided and the submissions made, and the provisions of Section 252(1) of the Companies Act, 2013, we are of the opinion that there are just and proper reasons to restore the name of the Company in the Register of Companies from the struck off date.
In view of the same, the order passed by the Respondent/RoC in striking off the name of the Company is hereby set aside, subject to the following directions:
I. The Registrar of Companies, Mumbai is ordered to restore the original status of the Petitioner Company (M/s. Keotsa Constructions Private Limited) as if the name of the Company has not been struck off from the Register of Companies with resultant and consequential action like changing the status of Company from ‘strike off’ to ‘active’.
II. The Company shall, within a period of 30 days from the restoration of the Petitioner Company’s name in the Register being maintained by the RoC, the file form of annual returns and balance sheets and all other statutory documents as are required to be made/filed under the Companies Act, 2013 for the period from which there has been default with requisite charges/fees as well as additional fee/late charges.
III. The restoration of the Company’s name is also subject to payment of cost of Rs. 1,00,000/- @ Rs. 25,000 for each year of Non-filling of Compliance. The imposed cost shall be paid by way of Demand Draft drawn in favor of “Pay and Accounts Office, Ministry of Corporate Affairs, Mumbai” within 30 days from date of the receipt of this order.
IV. This order of restoration of the name of the Company in the Register shall not automatically entitle the directors of the Company to hold directorship if disqualified under Section 164 of the Companies Act, 2013 except in accordance with law.
V. This order allowing the petition shall not circumscribe the power of the Respondent to proceed against the petitioner Company and its directors as mandated for alleged late filing of any returns, forms, documents and such other compliance under the provisions of the Companies Act, 2013.
14. The Petition stands allowed on the aforementioned terms.
