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TMI Blog2022 (12) TMI 413X X X X Extracts X X X X X X X X Extracts X X X X ..... ebtors, in respect of sums. The Appellant / Company in the instant Appeal has come out with a plea that in the event of Revival of the Company and the Restoration of name of the Company, in the Register, maintained by the Respondent, it shall file all Outstanding Statutory Documents, Viz. the Financial Statements for the Financial Years from 2016-17, 2017-18 and the Financial Statement and Annual Return 2018-19, along with the Filing Fees and the Additional Fee, as applicable on the Date of Actual Filing, and the Certified copy of the Order of Tribunal, for the Restoration of name of the Company, to the Register, maintained by the Respondent. On a careful consideration of the contentions advanced on side of the Appellant / Company, this Tribunal, taking out of the fact that the Appellant / Company has initiated various proceedings before the Criminal Courts (8 in number) against its Debtors, and is to recover approximately Rs.18,12,500/- from its Debtors and bearing in mind of the prime fact, Right to seek the name of the Company (to be entered, in the Register of Companies), is not Lost or Extinguished, as long as 20 years had not expired and apart from these, the Appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal Documents , since no prejudice will be caused to the Respondent on any score. No costs. JUDGMENT (Virtual Mode) Justice M. Venugopal, Member (Judicial): Company Appeal (AT) No. 28 of 2021: Background: 4. The Appellant / Company (Appellant in Appeal No. 215 / 252 (ND) / 2020, has preferred the instant Company Appeal (AT) No. 28 of 2021, before this Tribunal , as an Affected Person , being dissatisfied with the impugned order dated 04.01.2021, passed by the National Company Law Tribunal. New Delhi Bench, (Court II), in dismissing the Appeal . 5. The National Company Law Tribunal , New Delhi Bench, (Court II), while passing the impugned order dated 04.01.2021 in Appeal No. 215 / 252 (ND) / 2020, at Paragraph Nos. 11 to 14, had observed the following: 11. That the provisions pertaining to restoration of the name of the Company are provided in the Section 252(3) of the Companies Act, 2013, which, inter alia, includes that if a company is carrying out its business or in operation or otherwise it is just the name of the company be restored, this Tribunal can order the RoC to restore the name of the company in the Register of Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dulging in unlawful business or not abiding by the statutory compliances cannot be allowed to invoke this expression or otherwise which would be a travesty of justice besides defeating the very object of the Company .. 14. In view of the above, this Bench is not inclined to interfere with the striking off action taken by the RoC against the Appellant Company under Section 248(5) of the Companies Act, 2013. and resultantly, dismissed the Appeal . 6. According to the Learned Counsel for the Appellant, the Appellant / Company , was incorporated under the Companies Act, 1956 on 01.06.1992 as Beriwal Chemicals Limited (vide CIN : U24119DL1992PLC028863), as a Public Limited Company , by Shares with the Registrar of Companies , Delhi and Haryana , having its Registered Office, situated at C-9/35/Shop No.2, 2nd Floor, Section 8, Rohini, Delhi 110085. 7. It is represented on behalf of the Appellant, that its name was changed to Urvashi Infrastructure Limited , vide Certificate dated 06.02.2008 and the objects of the Appellant / Company were changed, as per Certificate dated 04.12.2017, and that the Appellant started pursuing infrastructure works ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereby the List of Companies , whose names were Struck Off , were published and the Appellant s name appeared at Sl. No.7503. 11. It is the plea of the Appellant that it preferred an Appeal bearing No. 215 / 252 (ND)/2020, before the Tribunal and the same was Listed, on 04.03.2020, and because of the Learned Counsel for the Appellant , got stuck up in another case, the matter was adjourned to 01.04.2020 and in view of Covid-19 Pandemic , the matter was not heard and later, the case was fixed for Hearing , on 23.12.2020, by virtue of the Order dated 25.11.2020, passed by the Tribunal . In the interregnum, filed numerous documents, among other things, the Balance Sheets for the Financial Year 2017-2018, 2018-2019, 2019-2020 and 2020-2021, Income Tax Demand / and Proof of Payment of Income Tax . 12. According to the Appellant, it had filed Income Tax Returns , showing Income, Employees whose Salaries were regularly paid, Trade Debtors from whom, it was to recover Rs.18,12,500/- and Legal Cases , are pending against them, before the Competent Law Courts , etc. 13. The Learned Counsel for the Appellant refers to the filing of Income Tax Returns , for the Asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ears 2017-18, 2018-19, 2019-20 and 2020-21 and the Annual Return for the Financial year 2018-19. In these circumstances, the Striking Off the name of the Appellant is unwarranted and unjustified. 18. Before the Tribunal , the Respondent / Registrar of Companies , took a plea that the action of Striking Off the Appellant / Company , was legal and justified, as the Company was not carrying on any Operations, for a period of two years, immediately preceding Financial Years (as indicated by non-filing of the Financial Statements of the Company for two or more years). Further, the Company had not obtained the Status of a Dormant Company , as per Section 455 of the Companies Act, 2013 . 19. Apart from the above, in the Respondent s Office, the Appellant / Company , had submitted its Annual Return and Balance Sheet , for the Financial Year , ended on 31.03.2018 and 31.03.2016, respectively and later the Appellant / Company , had not filed any documents with the Respondent. A Public Notice , in Form STK-5 was issued. 20. The stand of the Respondent before the Tribunal , was that the total demand raised by the Income Tax Department , for the Assessm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be restored to the Register to enable the matter to be carried to its conclusion, as has been held by this Court in M/s. Indian Explosives Ltd. v Registrar of Companies, CP. No. 185/2008, decided on 21st April, 2010. 26. In the decision in Sidhant Garg and Anr. v Registrar of Companies and Ors. , in (2012) 171 Comp. Cas. 326, it is observed and held that the word just would mean that it is fair and prudent from a commercial point of view to restore the Company and that the Court has to examine the concept of justness not exclusively from the perspective of a creditor or a member or a debtor but from the perspective of the society as a whole. 27. In the Judgment of the Appellate Tribunal dated 31.01.2019, in the matter of Lakshmi Rattan Cotton Mills Company Ltd. through its Director Sashank Gupta, Kanpur, Uttarpradesh v Union of India, through Secretary, Ministry of Corporate Affairs, (vide Comp. App. (AT) 239 of 2018), wherein at paragraphs 11 and 12, it is observed as under: 11. Looking to the disputes pending in the High Court, according to us, it would be appropriate to restore the name of the Company to the Registrar of Companies leaving all questions ope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0, the same would not come in the way of Registrar of Companies , Mumbai to recover other Statutory penalties / dues / filings, liable to be paid by the Appellant . Foreign Decision: 29. In the decision in Conti v Uebersee Bank AG, (2000) BCC 172 (Scotland), it is observed as under: Where a company has been struck off the register at its own request, the officer of the company who had been instrumental in seeking such a striking off had sufficient locus-standi to apply for restoration. Clearly that officer could not claim that he was aggrieved at the time of striking off but a subsequent feeling of grievance would give him locus-standi. The language of the section points to a sense of grievance at the time of application to restore and not at the date of the dissolution. 30. In Re Priceland Ltd. Waltham Foresh London Borough Council v Registrar of Companies and Ors. (1997) 1 BCLC 467, 476, 477 (Ch. D) (Companies Court), it is observed and held as under: ..In other words, the exercise of discretion only arises after the court has been satisfied that (a) the company was at the time of striking off carrying on business or in operation, or (b) otherwise th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the basis of an incorrect information , furnished by the Company or its Directors , which requires Restoration in the Register of Companies , he may within three years from the date of passing of the order, dissolving the Company under Section 248 of the Companies Act, 2013, file an Application , before the Tribunal , seeking Restoration of name of the Company . No Extinguishment : 36. The Right to pray for Restoration of a name of the Company , to the Register of Companies , maintained by the Registrar of Companies , is not wiped out as long as the period of 20 years had not lapsed , as opined by this Tribunal . Power of Tribunal: 37. The words figuring in or otherwise , in Section 252 (3) of the Companies Act denotes that, even when the Company was not carrying on any Business or was not in Operation , at the time of Striking Off , the Tribunal has the Choice to Order Restoration of a Company s name in the Register of Companies , if it appears to it, to be Otherwise Just . Dormant Company: 38. In Law , a Company , is entitled to Apply for obtaining the character of a Dormant Company , by passing a Special ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Magistrate Courts ), against its Debtors , (ranging from Rs.1,00,000/-, Rs.15,000/-, Rs.3,00,000/-, Rs.1,15,000/-, Rs.9,00,000/-, Rs.3,00,000/-, Rs.60,000/- and Rs.22,500/- respectively), and that apart, is to recover approximately Rs.18,12,500/- from its Debtors , in respect of sums. 45. According to the Appellant, its Bank Statements shows that regular transactions and payment of Salaries, Wages, Expenses, etc. and in fact, a Discretion , is vested in the Tribunal , to Restore the name of the Company , to the Register of Companies , if it is satisfied that the Company , was at that time of its name being Struck Off , carrying on Business or in Operations or Otherwise , it is just that the name of the Company be Restored to the Register of Companies and Order the name of the Company to be Restored . 46. The Appellant / Company in the instant Appeal has come out with a plea that in the event of Revival of the Company and the Restoration of name of the Company , in the Register , maintained by the Respondent , it shall file all Outstanding Statutory Documents , Viz. the Financial Statements for the Financial Years from 2016-17, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench (Court II) in the impugned order dated 04.01.2021 in Appeal No. 215 / 252 (ND) / 2020, is an incorrect and unsustainable one in Law . Viewed from that angle, the instant Appeal succeeds. Result: 49. In fine, the instant Company Appeal (AT) No. 28 of 2021 is allowed. No costs. The impugned order dated 04.01.2021 in Appeal No. 215 / 252 (ND) / 2020 (filed under Section 252 of the Companies Act, 2013), passed by the National Company Law Tribunal , New Delhi Bench (Court II), is set aside by this Appellate Tribunal , for the reasons assigned in this Appeal . The Notice of Striking Off and Dissolution in Form No. STK-7 dated 29.10.2019, where the name of the Appellant / Company , appearing at Serial No. 7503, is set aside. 50. Before parting with the case, this Tribunal , pertinently points out that the Restoration of the name of the Appellant / Company , is subject to its filing of all outstanding documents required by Law and completion of all Statutory formalities including payment of any late fee (for the outstanding period) or any other charges / prescribed fee , which are leviable by the Respondent for late filing of Statutor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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