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TMI Blog2022 (12) TMI 726X X X X Extracts X X X X X X X X Extracts X X X X ..... aryana within 08 (Eight) weeks from passing of this Judgment - after restoration of the Company's name in the Register maintained by the RoC, the Company shall file all their Annual Returns and Balances Sheets. The Company shall also pay requisite charges/fee as well as late fee/charges as applicable within 08 (Eight) weeks thereafter. Appeal allowed. - Company Appeal (AT) No. 154 of 2021 - - - Dated:- 15-12-2022 - [Justice Anant Bijay Singh] Member (Judicial) And [Mr. Kanthi Narahari] Member (Technical) For the Appellant : Mr. Rudreshwar Singh, Mr. Adarsh Tripathi, Mr. Vikram S. Baid and Mr. Gaurav Kumar, Advocates For the Respondent : None JUDGMENT Justice Anant Bijay Singh ; The present Appeal under Section 421 of the Companies Act, 2013, has been filed by the Appellant being aggrieved and dissatisfied by the order dated 08.10.2021 passed by the National Company Law Tribunal (Court-V, New Delhi) in Appeal 146/252/ND/2019 A/W CA/192/2021 whereby Appeal (146/252/ND/2019) filed by Directors of the Company named Durga Builders Pvt. Ltd. (the Company) invoking the provisions of Section 252 of the Companies Act, 2013 (the Act) for restoration of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to file Correct Annual Company Records with ROC from the year 1997 Such need arose owing to various factors related to the change in company management, wherein particularly, it is pertinent to draw the attention of this Hon'ble Appellate Tribunal to all previous company record updates done by the Appellant company through its erstwhile management Sh. R.K. Nanda and Smt. Promila Nanda- all of them are being fictitious, unauthorized, and done with the intention to confuse the Hon'ble Courts and the Registrar of Companies. The Appellant having felt for the bonafide reason that it would be germane to present before the Tribunal an accurate and true picture of the company workings and comparable records, it is necessary that any confusion with respect to previous filings in frivolous litigations and otherwise is clarified and substituted by the actual and original records submitted/filed by the authorised and current management of the Appellant/ Applicant company. iii) The Tribunal, after hearing the case of the Appellant and in the interest of justice and equity, had been graciously pleased to grant the interim protection to the Appellant by rendering the stay order dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Respondent No.1 Company, I am of the considered view that the Appellants are the shareholders as stated in the Agreement dated 19.05.1997 and the appointment of Directors is required for the proper working of the Company. As such, it held that: i. The names of the Appellant No.1 and 2 be entered in the register of members showing their respective shareholding within 2 weeks; ii. The shareholders meeting be convened immediately to consider the appointment of Directors for proper functioning of the Company. Accordingly, Mr. Divij Mehra and Mr. Saurabh Kapoor were appointed as Directors of Durga Builders Pvt. Ltd thereafter. Due to these litigations between the management of the Appellant Company, and nonavailability of the original record and documents with the present management, there was unintentional and inadvertent default in filing of annual returns during the intervening periods. v) In the absence of the documents and record of the Appellant/ Applicant Company, the directors of the Company could not do necessary filings. Additionally, the filing of returns undertaken by the Nandas were all illegal and void thereby requiring the current management to file returns f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellate Company had filed the Appeal (146/252/ND/20 19) under Section 252 of the Companies Act, 2013, seeking restoration of the name of the company on the Register of Companies maintained by the Registrar of Companies, Delhi with other consequential reliefs and the same has been erroneously dismissed by the Tribunal vide order dated 08.10.2021. Hence this Appeal. 3. The Ld. Counsel for the Appellant during the course of argument and in his memo of Appeal along with written submissions submitted that striking off the name of the Appellant Company done by the Respondent No. 1 is completely contrary to the intent of Section 248(1) of the Act. The sole purpose of striking off the name is to weed out the defunct companies who were not carrying on any business. However, the procedure adopted by the Respondent No. 1 while doing the same is against the provisions of Section 248(1) because of which a fully functional company has been struck off against the very intent and purpose of the Act. The Respondent No. 1 did not issue any notice under Section 248(1) of the Act which is mandatory in nature and a condition precedent before exercising the power of striking off under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... company and is being contested, it is proper to direct restoration of the name of the company. The same principles have been duly confirmed and followed by this Hon ble Court in Adroit Trade (P) Ltd. Vs. Registrar of Companies 2019 SCC OnLine NCLAT 187. 6. It is further submitted that the erstwhile management of the Appellant Company created all sorts of forged documents and entities and resorted to initiating all sorts of frivolous litigation to cast a shadow of doubt over the agreement dated 19.05.1997, so as to give legal sanctity to their criminal acts. To prevent the various frauds from surfacing and to keep the authorities in dark, false company records were filed by the Nanda s. Based on these false annual company filings, frivolous litigations for winding up the company were filed under the name of fictitious and non-existing persons. The present management took control of the Appellant company, tremendous efforts have been made for the revival of the Appellant Company which has been defrauded in various terms by the erstwhile management in various terms. The several suits are being contested by the erstwhile management dishonestly to gain undue advantage in terms of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of time as mentioned in notice published/sent and non-receipt of any objection from the company/directors, Dissolution in form STK-7 having effect from 08.08.2018 was published on the website of Ministry of Corporate Affairs on 18.08.2018. Further, it is stated that the impugned order was passed in due consideration of the relevant facts including the fact that as per the Records of the answering respondent, neither the Appellant company was carrying out any operation for a period of 3 preceding financial years nor have any immovable property in its name. The company was unable to produce before the Tribunal any just and equitable ground for revival. Further, submitted that the company was neither able to prove that it was carrying any business before it was strike off nor have produce any supporting information for just and equitable ground, therefore, the present Appeal deserves to be dismissed with exemplary cost. 9. On the other hand, the Respondent No. 2/ Income Tax Department in his reply stated that the Appellant Company has only filed the Income Tax Returns for the Assessment Year 2007-08 and thereafter, no returns have been filed by the Appellant Company. The Appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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