2018 (11) TMI 1734 - Tri - Companies Law

Maintainability of appeal - appeal preferred by disqualified directors - Striking of the name of the Company from the Register of Companies - Section 252(3) of the Companies Act, 2013 - HELD THAT - Admittedly the appellant company has defaulted in filing annual returns and financial statements for more than 3 (three) years. Therefore, Section 164(2)(a) of the Companies Act, 2013 attracts in the instant case. The directors have signed the appeal memorandum as well as the affidavits and filed the appeal memorandum as if they are the directors. They are not eligible to sign as the directors as per Section 164(2)(a) of the Companies Act, 2013 - The directors being disqualified u.s 164(2) (a) of the Companies Act, 2013 , they could not maintain an appeal of likenature u/s. 252(3) of the Companies Act, 2013. This view was taken by me in similar appeal also. Moreover, to substantiate the contentions on the side of the appellant that they are also shareholders of the appellant company, I find no supporting proof. There is no pleadings in the appeal memorandum that the shareholders referred to in the Memorandum and Article of Association are subsequently changed by induction of appellants as directors or that they have acquired shares of the appellant company and become shareholders on the date of filing of the appeal memorandum - there are no force in the arguments advanced by the appellants, that the appeal is to be considered on merit as the appellant directors are also shareholders of the appellant company. The appeal preferred by the appellant company represented by its directors is not maintainable as they are disqualified directors on the date of filing of the appeal - Appeal dismissed.

Summary

Issues:
- Appeal against striking off the name of the company from the Register of Companies, West Bengal under Section 252(3) of the Companies Act, 2013.
- Maintainability of the appeal by the directors of the company under Section 252(3) of the Companies Act, 2013.

Issue 1: Appeal against striking off the name of the company:
The appeal was filed by M/S. Jaishree Dealcomm Private Limited, represented by its directors, challenging the order of striking off the company's name from the Register of Companies, West Bengal. The appellants argued that while the company was regularly carrying out its activities and filing Income Tax Returns, it inadvertently failed to submit audited financial statements and annual returns for the financial years from 31/03/2014 to 31/03/2017. They contended that the company was operating and provided evidence of financial statements, annual returns, and Income Tax Returns to support their claim for restoration of the company's name.

Issue 2: Maintainability of the appeal by the directors:
The Registrar of Companies, West Bengal, in response, stated that the company's name was struck off after compliance with Section 248 of the Companies Act, 2013, due to non-filing of annual returns since the financial year 2013-14 onwards. The Registrar of Companies argued that the company was not functioning or in operation, leading to the removal of its name from the Register. The appellants, represented by the directors, filed the appeal under Section 252(3) of the Companies Act, 2013. However, it was found that the directors were disqualified under Section 164(2)(a) of the Companies Act, 2013, as they had defaulted in filing annual returns and financial statements for over three years. The directors signed the appeal memorandum and affidavits, claiming to be shareholders as well, but lacked supporting proof of shareholding or director eligibility as per the company's Memorandum and Articles of Association.

The Tribunal, after considering the arguments and evidence presented, concluded that the appeal filed by the company, represented by its directors, was not maintainable due to the disqualification of the directors under Section 164(2)(a) of the Companies Act, 2013. The Tribunal dismissed the appeal but granted liberty to file a fresh appeal in accordance with the provisions of the Companies Act, 2013. The decision was made with no order as to costs, and a certified copy of the order was to be issued to all concerned parties upon compliance with necessary formalities.