2018 (1) TMI 432 - Tri - Companies Law

Restoration of company name being struck off - Held that - It is not in dispute that Registrar of the Companies is empowered to take the impugned action and only the point here is that he has to strictly comply with provisions as extracted above. A Court/Tribunal cannot interfere with normal activities of business of a Company being carried on in accordance with law unless any serious violation of law committed by a Company. As stated supra, the impugned violations are not so severe so as to take serious view of it. Moreover, the Company has come forward to file all required documents comply in accordance with law along prescribed/additional fee along with fine. It is also relevant to point out here that there is no bar for a Company, which is struck off, can register new company, in accordance with law. As stated, the Company is rendering services as commission agent for referring and enrolling members into any resorts, clubs, hotels, family parks and other related activities etc, and it is running without any interruption. In terms of section 248(6) of Act as extracted supra, the above consequences are required to be looked into while passing final order under section 248(5) of the Act. It is no doubt that the Company, on its part, is under statutory obligation to comply with all extant provisions Companies Act, 2013. The Company is now satisfactorily explained to Tribunal the reasons for the delay in non-filing statutory returns in question and expressed its willingness to file them along with payment of prescribed fee. Thus as satisfied that the applicant Company has filed the present application within prescribed time under law, and also shown sufficient reasons to order Restoration of its name in the Register of companies maintained by the Registrar of Companies. Therefore, the Company application deserves to be allowed, however, subject to filing all pending returns, Annual returns, Balance sheets, statements etc., along with prescribed and addl. fee under law. And also subject to giving undertaking that they would not resort to such type of violations in future.

Issues Involved:
1. Restoration of the company's name in the Register of Companies.
2. Compliance with statutory requirements and filing of pending returns.
3. Evaluation of the Registrar of Companies' (ROC) action to strike off the company.
4. Legal provisions under Sections 248 and 252 of the Companies Act, 2013.
5. Consideration of the company's business operations and interests of stakeholders.
6. Tribunal's authority and conditions for restoration.

Issue-Wise Detailed Analysis:

1. Restoration of the Company's Name in the Register of Companies:
The application was filed by M/s Sree Gayathri Leisure India Private Limited under Section 252 of the Companies Act, 2013, seeking restoration of its name in the Register of Companies. The company was struck off by the ROC due to non-filing of annual accounts and returns for the financial years 2013-2014 to 2015-2016. The company argued that it had been continuously operating and generating revenue, and that the failure to file returns was inadvertent.

2. Compliance with Statutory Requirements and Filing of Pending Returns:
The company admitted its lapse in filing the required documents and expressed its willingness to comply by submitting all pending returns along with the prescribed fees and additional fines. The Tribunal directed the company to file all pending statutory documents, including annual accounts and returns for the financial years 2013-14, 2014-15, and 2015-16, within 45 days from the date of restoration.

3. Evaluation of the ROC's Action to Strike Off the Company:
The ROC's action was based on the presumption that the company was not carrying on any business due to non-filing of returns. However, the Tribunal noted that the company had been generating revenue and conducting business activities, as evidenced by its financial statements. The ROC did not oppose the restoration but insisted on compliance with statutory provisions.

4. Legal Provisions under Sections 248 and 252 of the Companies Act, 2013:
Section 248 empowers the ROC to strike off a company if it fails to commence business within one year of incorporation or if it has not carried on any business for two preceding financial years. Section 252 allows an aggrieved party to appeal to the Tribunal for restoration of the company's name within three years of the ROC's order. The Tribunal can order restoration if it is satisfied that the company was carrying on business at the time of striking off or if it is just to restore the company's name.

5. Consideration of the Company's Business Operations and Interests of Stakeholders:
The Tribunal recognized that the company was actively engaged in business activities and that striking off its name would adversely affect its stakeholders, including commission agents and employees. The Tribunal emphasized the importance of considering the interests of the company and its stakeholders while making a decision.

6. Tribunal's Authority and Conditions for Restoration:
The Tribunal exercised its powers under Section 252 to order the restoration of the company's name, subject to certain conditions. The company was directed to file all pending returns and pay a cost of ?30,000. The Tribunal also mandated the company to ensure compliance with statutory provisions and to avoid similar violations in the future.

Conclusion:
The Tribunal allowed the application for restoration of the company's name in the Register of Companies, subject to compliance with statutory requirements and payment of costs. The ROC was directed to restore the company's status and publish the order in the official Gazette. The Tribunal's decision was based on the company's continuous business operations and the interests of its stakeholders.

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