2023 (2) TMI 785 - AT - Companies Law

Seeking restoration of the name of the Company in the Register maintained by the Registrar of Companies (RoC), NCT of Delhi and Haryana - name was struck off on the ground that the company has done no business or operation for two immediately preceding financial years from the date of notice - HELD THAT - The Audited Financial Statements for the Financial Years from 2014-15 to 2015-16 shows that the Appellant Company is having substantial movable as well as immovable assets and the Company was/is in operation when the name was struck off. Therefore, it cannot be said that the Appellant Company is not carrying on any business or operations. Hence, the order passed by the National Company Law Tribunal (New Delhi Bench, Court-II) as well as Registrar of Companies, NCT of Delhi Haryana is not sustainable in law. The name of the Appellant Company be restored to the Register of Companies subject to the compliances fulfilled - application allowed.

Summary

Issues:
- Restoration of company name in Register of Companies
- Compliance with statutory provisions
- Just and equitable grounds for restoration

Detailed Analysis:

Issue 1: Restoration of company name in Register of Companies
The Appellant filed an appeal under Section 421 of the Companies Act, 2013, challenging the order passed by the National Company Law Tribunal (NCLT) dismissing the appeal for restoration of the company's name in the Register maintained by the Registrar of Companies (RoC). The Appellant, a director of the company, contended that despite facing financial challenges and market recession, the company remained functional, maintaining assets and liabilities, including substantial financial creditors and debtors. The Appellant argued that the company's operations were evident through audited financial statements and transactions, indicating its functional status at the time of striking off.

Issue 2: Compliance with statutory provisions
The Appellant highlighted the non-compliance with Section 248(1) of the Companies Act, emphasizing the necessity of issuing statutory notices to directors and the company before striking off a solvent/functional entity. The Appellant argued that the absence of personal notice deprived them of the opportunity to present relevant facts and representations, violating principles of natural justice. Additionally, the Appellant cited precedents where restoration was granted due to procedural lapses and emphasized the need for adherence to legal requirements before striking off a company.

Issue 3: Just and equitable grounds for restoration
The Respondent, Registrar of Companies, justified the striking off based on the company's apparent inactivity for two preceding financial years and failure to file subsequent documents to maintain operational status. However, upon review, the Appellate Tribunal found that the company possessed substantial movable and immovable assets, conducted business activities, and was operational when the name was struck off. Consequently, the Tribunal set aside the NCLT's order and directed the restoration of the company's name in the Register of Companies, subject to specified compliances, including payment of costs, filing of annual returns, and other necessary documents.

In conclusion, the Appellate Tribunal allowed the appeal, emphasizing the company's functional status and substantial assets, overturning the NCLT's decision and ordering the restoration of the company's name in the Register of Companies, subject to compliance with specified conditions.