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TMI Blog2018 (6) TMI 1263X X X X Extracts X X X X X X X X Extracts X X X X ..... nto 50,000 equity shares of Rs. 10/- each. The main objects of the company are given in its Memorandum of Association which are to carry on the business of manufacturers, assemblers, dealers, traders, exporters and importers, clearing and forwarding agents. Agents, wholesalers of all kinds and varieties of Industries used for production of all kinds and varieties of Goods and Commodities including iron boxes meant and used for pressing clothes by use of liquefied petroleum gas as fuel. 3. Appellant submits that the company could not carry on the business due to some operational issues and did not even file ROC Annual Filings within stipulated time. Now when the appellant company decided to go for regularising the company by filing all necessary ROC filings, it was found that the Registrar of Companies has struck off the name of appellant company from the Registrar of Companies and the company filed an application before the National Company Law Tribunal, Hyderabad Bench, Hyderabad to restore its status and then regularise the filings of the company accordingly. The Tribunal after hearing the petitioner rejected the application vide order dated 19.09.2017. The relevant portion of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... speed post. Learned counsel further submitted that the notices in Form STK-1 have only been issued to two directors and not to the third director namely Shri Venkata Raja Rajeshwara Sharma Sivanoori, who was appointed as an Additional Director on 1.3.2017 and the Respondent was intimated about the same vide Form DIR-12 on 14.3.2017. Learned counsel appearing on behalf of the appellant in support of this has placed reliance on judgements namely Ascot Shoes Pvt Ltd Vs ROC (2016) SCC Online Del 4180, Pancham Hotels Pvt Ltd Vs ROC (2015) SCC Online Del 9501, Badal Industries Pvt Ltd Vs ROC 1010 (117) DRJ 512, Newage Commercial P Ltd Vs ROC (2010) SCC Online Cal 1908, Tufail Ahmed Khan Constructions Pvt Ltd Vs UOI & Anr, MANU/BH/0577/2009, M/s Gill Heavens Farms Pvt LTd Vs ROC, Co.P.No.121/2007, R.A.P. Garments Pvt Ltd Vs ROC, Co.P.No.461/2014. 7. Learned counsel appearing on behalf of the appellants submitted that Section 248(1) of the Act read with Rule 3(2) of Companies (Removal of Names of Companies from the Register of Companies) Rules, 2016 prescribes the specific modes of service/delivery of notice i.e. registered post with acknowledgement due or speed post but no proof of ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... outcome of the appeal. 13. Reply has been filed on behalf of the Respondent. Learned counsel for the respondent submitted that the allegations made in the appeal that the respondent office in a completely illegal, arbitrary and malafide manner struck off the name of the appellant company by publishing notice in STK-7 under Section 248(5) of the Act, is denied. 14. Learned counsel for the respondent submitted that the appellant is a private limited company registered under the Companies Act and is required to file their Annual Financial Statements under Section 137 of the Act and Annual Returns under Section 92 of the Act every year. The appellant has not filed the above statutory returns since incorporation. 15. Learned counsel for the Respondent submitted that Ministry of Corporate Affairs vide letter F.No.3/53/2017-CL II dated 17.2.2017 advised all Registrar of Companies to identify companies which are not filing their Statutory returns and initiate action under Section 248(1) of the Act against companies which are not in operation. Learned counsel submitted that the respondent identified the companies which have not filed their statutory returns for the FY 2014-2015 and 2015 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -7 was issued on 21.7.2017, which has been published in the official Gazette dated 19.8.2017. 18. Learned counsel for the respondent submitted that the Tribunal has rejected the application of the appellant for want of proof that the respondent has not followed due process of law and not an application under section 252(3) of the Act, if the appellant was a working company and aggrieved by the action of the Respondent in striking the name off the Register, the appellant ought to have filed an application under Section 252(3) of the Act, since specific remedy is provided therein. 19. Learned counsel for the respondent stated that the appellant have nowhere stated the reasons for non-filing of statutory returns with ROC due to which the name of the company has been struck off. Learned counsel further stated that non filing of statutory returns tantamount to denial of right to information to the public authorities and stake holders at large and is serious in nature. 20. Learned counsel for the respondent stated that it was an appeal filed under section 252(1) of the Act which was rejected by the Tribunal and not an application under Section 252(3) of the Act. Learned counsel furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the respondent. 25. Rejoinder has been filed on behalf of the appellant. 26. Learned counsel for the appellant submitted that the respondents' contention that the appellant company ought to have filed an application under section 252(3) of the Act instead of Section 252(1) is completely misplaced and untenable. Learned counsel submitted that the remedies provided under section 252(1) and 252(3) of the Act are mutually exclusive remedies and any person, including the company whose name has been struck off, can approach the Tribunal seeking restoration of its name. 27. Learned counsel for the appellant stated that the averment of the Respondent that many applications under Section 252(3) of the Act have been allowed by the Tribunal and that the aggrieved company merely has to show that it is a working company and not that the respondent has not followed the process of law, is a tacit admission on the part of the respondent that the appellant company is a working company and that it has no objection if the name of the appellant company is restored. 28. Learned counsel for the appellant submitted that the appellant is a working company and that the name of the appellant company o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17 had not been given a notice. When company has been served it is Notice to the Directors. Additionally, 2 of the 3 Directors had been served. It is substantial compliance and knowledge can be assumed. 33. We further observe that a notice on STK-5 under Section 248(1) of Companies Act, 2013 has been issued to 24338 companies including the appellant company intimating them the reasons for striking off/removal of their name from the register of companies and dissolve them unless a cause is shown to the contrary, within thirty days from the date of notice. Appellant company was given thirty days' time to file their objection from the date of publication of notice. No objection has been filed by the company. 34. We further observe that a Public Notice in Form No.STK-5A was published in the English and Telugu newspapers for the information of the general public and concerned companies including the appellant company intimating them the reasons for striking off/removal of their name from the register of companies and dissolve them unless a cause is shown to the contrary, within thirty days from the date of notice. Appellant company was given thirty days' time to file their objection f ..... 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