Svayambhu Constructions Private Limited vs Registrar Of Companies NCT Of Delhi And Haryana And Ors

Hemant Kumar Sarangi, Member (T)

The present appeal is filed by the Director of M/s. Svayambhu Constructions Private Limited (for brevity the 'Company'), under Section 252 of the Companies Act, 1956 (for brevity 'the Act') against the order of striking off the name of the company, passed by the respondent under section 248(1) of the Act, issued vide notification No. ROC/DELHI/248(5)/STK-7/4865 and published on 08.08.2018 by Registrar of Companies, the respondent herein.

The Appellant states that, the company is incorporated as a Private Limited Company with the Registrar of Companies, NCT of Delhi and Haryana under the Companies Act, 1956 on 04.12.2006 with CIN U45200 DL2006 PTC 156178, having its registered office at 910, Ansal Bhawan 16, K. G. Marg, New Delhi - 110001, within the jurisdiction of this Tribunal.

The Authorized Share Capital of the company is Rs. 55,00,000/- divided into 5,50,000 equity shares of Rs. 10/-each. The issued, subscribed and paid up share capital of the Company is Rs. 52,40,000/- divided into 5,24,000 equity shares of Rs. 10/- each, as per the Master Data Annexed.

The main objects of the company are:

(i) To engage in infrastructure development, Real Estate Promoters, Developers & Project Management Association including civil, mechanical, electrical, and all other types erection, commissioning projects, consultant for execution of projects on turnkey basis.

(ii) To carry on the business as builders, consultants, civil engineers, architects, surveyors, designers, town planners, estimators, interior and exterior decorators, general and government civil contractors of immovable properties, all types of structural and polling engineering work, interior designing, land scraping and graphic.

(iii) To buy, purchase, or otherwise acquire and interest in any immovable property such as houses, building, market, cinema halls, multiplexes, shopping malls, shops, townships, housing projects, industrial sheds & lands within or outside the limits of municipal corporation or such other local bodies and to provide roads, drains, water supply, electricity and lights, within these areas, to divide the same into suitable plots and rent or sell the plots to the people for building, houses, villas bungalows farmhouses & colonies for workmen according to schemes approved by improvement trusts, development boards and municipal boards and municipal boards and municipal boards there on and to rent or sell the same to the public and realize cost in lump sum or on instalments or by hire purchase system; or otherwise to start any housing scheme in India or abroad.

(iv) To construct, maintain, erect and lay out roads, highway sewers, drains, electric lines, cables, and Gas lines, in over and under the estate of any other company or person or body-corporate.

(v) And the other main objects.

The Appellant further states that, a sweeping action was initiated by the ROC, at the instance of MCA, in striking off the names of several Companies who had failed to file their Statutory Returns. The Appellant had not filed its Financial Statement for the Financial Years 2015-16 and 2016-17, thereby giving rise to the surmise that the business of the company was not in operation. Consequently, its name was struck off vide notice STK-7 dated 08.08.2018 by the Respondent from the Register of Companies under Section 248 of the Companies Act, 2013, upon taking steps in accordance with law and issuing a notification in the Official Gazette. The names of the affected companies were posted on its website.

It is not known whether M/s. Svayambhu Constructions Private Limited has made any representation to the ROC in pursuance of a purported Public Notice bearing No. ROC/DELHI/248/STK-5/2018/2912 dated 18.06.2018 had sought explanation from the company as to why its name should not be struck off from the register of companies, on account of not carrying on any business or operation for a period of two immediately preceding financial years and having not made any application within such period for obtaining the status of a dormant company under section 455 of the Companies Act, 2013 (Act).

The Respondent herein had issued notice bearing no. ROC/DELHI/248(5)/STK-7/4865 dated 08.08.2018 (name of the company is reflected at Sl. No. 21334), whereby name of 24280 companies have been struck off from the Registrar of Companies and the Company has been dissolved.

As per the notice of non-compliance of provision of the Companies Act, 2013 in respect to filing of Financial Statement for the Financial Years 2015-16 and 2016-17, 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 that the financial statement upto the year ending 31.03.2015 alongwith other statutory documents were duly filed by the Company with the ROC (duly reflecting in the Master Data of the Company). The company was active and was carrying out its business during the period of striking off but the reporting of such activities through Annual Returns and Financial Statement had not been filed with Registrar of Companies due to inadvertence on part of the management. The said facts are evident from the Bank Account statement of the Company for the relevant period.

The Appellant has brought forward the following documents about it being in operation and functional during the period of striking off:

i. The copy of Sale Deed executed on 23.07.2008 in respect of commercial property bearing no. CG - 04, Ground Floor, Block- C, Ansal Plaza, HUDCO Place, New Delhi - 110049, area measuring 1714 sq. ft.

ii. The copy of Sale Deed executed on 23.07.2008 in respect of commercial property bearing no. CG - 05, Ground Floor, Block - C, Ansal Plaza, HUDCO Place, New Delhi - 110049, area measuring 1626 sq.

iii. The copy of Bank Statements of the Company in IDBI Bank Limited for the period 08.04.2016 to 08.05.2018 showing various transaction details of the company and reflecting closing balance of Rs. 28,97,384.00 as on 08.05.2019.

iv. The copies of Audited Financial Statements of the company for the period from F. Y. 2015-16 and 2016-17. The Balance Sheet reflects Assests in form of non-current investment of Rs. 5,83,45,641/-and Rental Income of Rs, 16,58,520/-.

v. The copies of Income Tax Returns for the Assessment Years 2016-17 to 2017-18. The tax paid by the company for A.Y. 2017-18 is Rs. NIL.

vi. Copy of GST Invoices since 2017.

The ROC has filed its reply on 29.08.2019 in which it has been submitted that the Company had not filed its Financial Statement since Financial Year ended on 31.03.2016. However, the ROC further submits that the company was struck off by the office of Respondent since neither the company was carrying on any operation for a period of two immediately preceding financial years, nor obtained the status of a Dormant Company under Section 455 of the Companies Act, 2013.

The Income Tax Department has not filed any reply in spite of being given repeated opportunity to do the same. Hence, the present appeal is being decided in the absence of any reply from the Income Tax Department.

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 and the Section 252(3) further contemplates that one of the above 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.

The Appellant has submitted sufficient evidence that it has been in operation since incorporation and during the period preceding strike off, therefore, it could not be termed as defunct company as per section 252 of the Act. Thus, taking into consideration the provisions of Section 252(1) 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 hereby declared illegal and 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.