2021 (12) TMI 1276 - Tri - Companies Law

Seeking restoration of name of the company in the register of ROC - Section 252(3) of the Companies Act, 2013 - HELD THAT - As per the record, the petitioner has preferred the present appeal under section 252(3) of the Companies Act as being the shareholder and Director of the deregistered company. He is eligible to file the present appeal for restoration of the company s name in the register of the ROC. Hence, the present appeal is found maintainable - As per the records the name of the company, M/S Elangbam Infrastructures Construction Private Limited got struck off from the Register of Companies w.e.f 30/09/2019 (followed by a Gazette notification published in this respect), while the present appeal has been filed on 23.08.2021. Hence it is found to file within limitation. It would be just and equitable to revive the name of the company M/S Elangbam Infrastructures Construction Private Limited in the statutory register as being maintained by the Registrar of Companies, Guwahati - respondent is directed to restore the original status of the petitioner company as if the name of the Company had not been struck off from the register of Companies with the resultant. Application allowed.

Issues Involved:

1. Restoration of the company's name in the Register of Companies.
2. Compliance with statutory requirements.
3. Adherence to procedural norms under Section 248 and Section 252 of the Companies Act, 2013.
4. Consideration of the company’s operational status.
5. Imposition of conditions for restoration.

Issue-wise Detailed Analysis:

1. Restoration of the Company's Name in the Register of Companies:
The appellant sought the restoration of M/S Elangbam Infrastructures & Construction Private Limited's name in the Register of Companies maintained by the Registrar of Companies (ROC), Guwahati. The company's name was struck off on 04.11.2019 due to defaults in statutory compliances, specifically the failure to file Financial Statements and Annual Returns for multiple financial years (2014-15 to 2018-19).

2. Compliance with Statutory Requirements:
The appellant contended that the company had been active since its incorporation and had maintained all requisite documentation as per the Companies Act, 2013. The failure to file returns was attributed to the negligence of a Chartered Accountant engaged by the company, who did not file the returns and did not inform the directors. The petitioner assured that upon restoration, the company would file all outstanding statutory documents and pay the necessary fees.

3. Adherence to Procedural Norms under Section 248 and Section 252 of the Companies Act, 2013:
The petitioner argued that the ROC did not follow the prescribed procedure under Section 248(1) of the Companies Act, 2013, as no notices were sent to the company before striking off its name. The ROC, in its report, asserted that it had reasonable cause to believe the company was not carrying on business and had complied with the formalities under Section 248 before striking off the company’s name.

4. Consideration of the Company’s Operational Status:
The ROC's report noted that the company had not filed any financial statements since its incorporation and that the directors were disqualified under Section 164(2) of the Companies Act, 2013. However, the petitioner provided evidence of the company's operations, including the opening of a bank account and transactions related to contract business starting from FY 2019-20.

5. Imposition of Conditions for Restoration:
The Tribunal, after considering the merits of the appeal and the documents provided, decided to conditionally allow the restoration of the company's name. The conditions included:
- The ROC, Guwahati, was directed to restore the company's original status.
- The company was required to file all pending statutory documents for the financial years 2014-15 to 2019-20 and pay the prescribed fees.
- The company's representative was to ensure compliance with the order personally.
- The company had to pay a cost of ?50,000 for revival.
- The petitioner was to deliver a certified copy of the order to the ROC within thirty days.
- The ROC was to publish the order in the Official Gazette.
- The order would not prevent the ROC from taking action for any other violations committed by the company.

Conclusion:
The Tribunal found the appeal maintainable and within the limitation period. It concluded that it would be just and equitable to revive the company's name, subject to compliance with the specified conditions. The C.P No. 13/GB/2021 was disposed of with these directions, and the Registry was instructed to send e-mail copies of the order to all parties involved.

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