Amit Bansal Vs Registrar of Companies NCT of Delhi and Haryana

L. N. Gupta, Member (T) And Sh Harnam Singh Thakur Member (J)

1. The present Appeal has been preferred by M/s Jalsa Infrastructure Private Ltd. (the ‘Appellant Company’) through its Director and Shareholder, Mr. Amit Bansal, invoking the provision of Section 252 of the Companies Act, 2013 for restoration of the name of the Appellant Company in the Register maintained by the Registrar of Companies, NCT of Delhi and Haryana (the ‘RoC’).

2. As per the averments M/s Jalsa  Infrastructure  Private  Ltd.  was incorporated as a Private Limited Company under the provisions of Companies Act, 1956 on 20.12.2011 with CIN No. 45202HR2011PTC044621 and having its registered office at 736, Sector 14, Gurgaon, Haryana which

is within the jurisdiction of this Tribunal.

3. As per its MoA, the Appellant Company is mainly involved in the following business:

“1. To build, construct, develop, maintain and sell, let out on lease or otherwise mall, commercial complex, amusement part, theme part, cine complex, service apartments, residential flats, apartments, houses, club houses, common areas at Jalsa Jaipur Malls, Apex Circle, Malviya Nagar, Jaipur, Rajasthan and to prove for the tenants and occupiers there of all conveniences……”

4. The Appellant has submitted that the ROC Delhi and Haryana struck off the Appellant Company’s name from its register without giving the notices to the company as well as to the individual Directors. On perusal of the website of MCA, they noticed that RoC had initiated proceedings under Section 248 of the Companies Act 2013 and struck off the name of the Appellant Company from its Register vide Notice No. ROC-DELHI/248(5)/STK-7/2879 dated 30.06.2017. The name of the Appellant appeared at serial no. 9496 of the list of Companies, whose names were struck off due to default in Statutory compliances.

5. The Appellant Company has submitted that it was active since the date of its incorporation. In order to corroborate its submission, the Appellant Company has placed the following documents:

a) Copy of Audited Balance-sheets for the financial Years 2015-16 to 2019-20.

b) Copy of profit and loss statement for the financial years 2014-15 to 2019-20 with nil income from operations.

c) Copy of Annual Tax Statement (Form 26 AS) for the Assessment Years from 2016-17 to 2019-20 depicting the following Income:

6. The Income Tax Department filed its reply dated 22.03.2022 stating that IT Department has no objection to revival of the Appellant Company. It has also indicated that there is an outstanding demand of Rs. 1,98,75,410/-against the Appellant Company for the Assessment Year 2013-14. In compliance to the order dated 20.10.2023, the appellant has filed an undertaking by way of an affidavit dated 28.11.2023 that all outstanding demands including the demand for AY 2013-14 would be duly paid/complied with by the appellant and company.

7. The AROC representing the ROC filed its reply dated 07.12.2022 and submitted that the last documents submitted by the Appellant Company to the RoC office pertain to the Financial Year ending on 31.03.2012. Thereafter, no Balance Sheets were filed by the Company before its name was struck off. Moreover, no documents were filed by the company with RoC to obtain the status of a "Dormant Company" under Section 455 of the Companies Act, 1956. Hence, ROC had reasonable cause to believe that the company was not in operation, and therefore, the name of the company was struck off from the Register of Companies.

8. After  hearing  submissions  of  both  the  parties  and  perusing  the documents placed on record, it is observed the name of the Appellant Company was struck off from the Register of ROC on 30.06.2017. Since, the present Appeal has been filed on 08.10.2021 under Section 252(1) of Companies Act, 2013 therefore, we would like to examine - Whether the present Appeal is filed within the limitation period and maintainable?

9. At this juncture, we refer to Section 252(1) of the Companies Act, 2013, the contents of which are reproduced below:

“252. Appeal to Tribunal.— (1) Any person aggrieved by an order of the Registrar, notifying a company as dissolved under section 248, may file an appeal to the Tribunal within a period of three years from the date of the order of the Registrar and if the Tribunal is of the opinion that the removal of the name of the company from the register of companies is not justified in view of the absence of any of the grounds on which the order was passed by the Registrar, it may order restoration of the name of the company in the register of companies:

Provided that before passing any order under this section, the Tribunal shall give a reasonable opportunity of making representations and of being heard to the Registrar, the company and all the persons concerned:

Provided further that if the Registrar is satisfied, that the name of the company has been struck off from the register of companies either inadvertently or on the basis of incorrect information furnished by the company or its directors, which requires restoration in the register of companies, he may within a period  of  three  years  from  the  date  of  passing  of  the  order dissolving the company under section 248, file an application before the Tribunal seeking restoration of name of such company. (Emphasis Supplied)

10. On perusal of the above, it is clear that any person aggrieved by an order of the Registrar (ROC) can challenge the striking off action before this Tribunal within three years from the date of order.

11. In the instant case, the Appeal has been filed on 08.10.2021, whereas the name of the company was struck off on 30.06.2017, which is much later to the expiry of the limitation period of three years. However, we are aware that due to Covid-19, the Hon’ble Supreme Court extended the period of limitation vide its order dated 10.01.2022 in Suo Motu Writ Petition (C) No. 3 of 2020, the relevant extracts of which are reproduced below:

“5. Taking into consideration the arguments advanced by learned counsel and the impact of the surge of the virus on public health and adversities faced by litigants in the prevailing conditions, we deem it appropriate to dispose of the M.A. No. 21 of 2022 with the following directions:

I….

II….

III. In cases where the limitation would have expired during the period between 15.03.2020 till 28.02.2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 01.03.2022. In the event the actual balance period of limitation remaining, with effect from 01.03.2022 is greater than 90 days, that longer period shall apply.”

12. Further, the Hon’ble NCLAT in Company Appeal (AT) (Insolvency) No. 936 of 2021 in the matter of M/s. Essjay Ericsson Private Limited vs. M/s. Frontline (NCR) Business Solutions Pvt. Ltd dated 10.01.2022 specifically held as reproduced overleaf:

“12. When the Hon’ble Supreme Court in exercise of jurisdiction of Article 142 of the Constitution of India has directed for extension of period of limitation, a litigant is entitled for the benefit of extended period of limitation and if the petition, application, suit, appeal etc. are filed within extended period of limitation, the application, appeal, suit etc. shall be treated within period of limitation. When the Hon’ble Supreme Court has granted extension of period of limitation, it cannot be said that appeal, suit or application which is filed during the relevant period is barred by time so as requiring an Application under Section 5 of the Limitation Act, 1963 for condonation of delay. When the appeal, suit, application etc. is filed within period of limitation as extended by the Hon’ble Supreme Court, there does not arise any occasion to pray for condonation of delay for filing suit, application or appeal. However, if a litigant being over cautious files an Application under Section 5 of the Limitation Act, 1963, no exception can be taken to that proceeding but there is no requirement in law to file an application under Section 5 of the Limitation Act, 1963.

Further, when an application, appeal or suit etc. is filed within extended period of limitation as directed by the Hon’ble Supreme Court, as noted above, there is no discretion left with the Court or Tribunal to hold that application, appeal or suit is delayed when there is no requirement of filing application under Limitation Act. In above circumstances, discretion of Court to consider sufficient cause does not arise.”

13. In the normal circumstances, the limitation of the present Appeal would have expired on 29.06.2020, however, in view of the directions passed by Hon’ble Supreme Court (Supra), the Appellant has got the benefit of the extended limitation period, as per which it had 90 days’ period from 01.03.2022 to file the present appeal. Since the present appeal is filed on 08.10.2021 i.e., before 01.03.2022, therefore, the appeal is deemed to have been filed within the limitation period for the purpose of Section 252(1) of Companies Act, 2013.

14. As regards to maintainability of the application, as evident from the contents of Section 252(1) of Companies Act, 2013, any person can file an appeal against the order of striking off of the Company passed by the ROC. In such circumstances, we find the present Appeal is maintainable.

15. The provisions pertaining to restoration of the name of the Company are provided in the Section 252(1) of the Companies Act, 2013, which, inter alia, includes that if a company is carrying out its business or in operation or otherwise it is just that the name of the company be restored, this Tribunal can order the RoC to restore the name of the company in the Register of Companies.

16. The Appellant Company though through its averments has stated that it had revenues from its operations, paid taxes as per Form 26 AS, the ROC of Delhi & Haryana vide its reply cum affidavit has stated that the action of the striking off the present company was legal and justified as the company was not carrying on any operations for a period of two immediately preceding financial years as reflected by non-filing of the financial statement of the company. Based on the information provided by the Appellant, it has further observed that there was zero revenue from operations. The observations as given by ROC in the tabular format are reproduced overleaf:

17. Moreover, it is observed that the Appellant-company has not placed its bank statement to corroborate transactions from its business. Thus, the Appellant has failed to substantiate through some tangible documentary evidence on record that it was carrying on any business for a period of two immediately preceding financial years before its name was struck off from the Register of RoC. More so, as per report of ROC, no documents have been filed by the Company with ROC to obtain status of a Dormant Company under Section 455 of Companies Act, 2013.

18. In sequel to the above, Appeal being devoid of merits is dismissed.