9911796707
TMI Blog2023 (4) TMI 1029X X X X Extracts X X X X X X X X Extracts X X X X ..... the present appeal and set aside the impugned/final order dated 27.07.2021 passed by the Learned National Company Law Tribunal, Bench at Chandigarh in CP 49/Chd/Pb/2020. b) direct the Respondent No.1 to restore the name of the company i.e. M/s Opax Web Private Ltd in the register of companies maintained by the Respondent No.1; and c) pass such other directions and make such provisions as deemed just for placing the name of the Company i.e. M/s Opax Web Pvt Ltd and its directors in the same position as nearly as may be as if the name of the Company i.e. Opax Web Pvt Ltd had not been sturck off from the register of companies; and d) set aside the notification published by the Respondent No.1 for striking off the name of the Company i.e. M/s Opax Web Pvt Ltd to the extent the same is applicable to the Company; and e) Pass any other or further order or direction, which the Hon'ble Appellate Tribunal may deem fit and proper in the facts and circumstances of the case in the interest of justice. 3. The short fact of the case is that M/s Opax Web Pvt Ltd was incorporated under the provisions of the Companies Act, 2013 on 24.12.2013 vide Registration number CIN No.U72300HR2013PTC05 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct for dissolution of the company in Form STK 7 with effect from 8.8.2018 was published on the website of Ministry of Corporate Affairs. Meaning thereby that company's name was struck off from the register of the companies of the ROC on 8.8.2018. 6. The appellant thereafter in the year 2021 filed an appeal before the NCLT under the provisions of Section 252(3) of the Companies Act, 2013 which was numbered as CP No.49(CHD)Hry/2020. After hearing the parties and considering the fact that the company was not operating prior to striking off the name, the learned NCLT vide its judgement dated 27.07.2021 dismissed the petition filed by the appellant herein which has been assailed in the present appeal. 7. Mr. Mast Ram, learned PCS has appeared on behalf of the appellant. Assailing the impugned judgement it was submitted by learned PCS that the appellant company has placed balance sheets prepared by the Chartered Accountant which was reflective of the fact that the company was operating. However, due to unavoidable circumstances reports were not submitted before the ROC. According to Mr. Mast Ram, learned PCS, learned NCLT on the basis of facts disclosed in the balance sheet prepared by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... siness of the Company to his Firm namely ProHosterz IT Solutions and with a motive to stall the process of law and evade the statutory liability of paying filing fees, taxes, unsecured loan payables etc. as admittedly, vide para 2(vi) at page no 186 of the appeal, respondent no. 3 due to his personal matrimonial disputes, was out of affairs of the company for about 3 years, and admittedly respondent no. 3 failed to honour his statutory obligations of filing returns with respondent no. 1. 3. That the Ld. Tribunal escaped to notice that the matter was to be considered from a broader perspective keeping in view the interests of various stakeholders including employees and larger social interest (not limiting to the personal issues raised by Respondent no. 3, although the same are outside the ambit of section 252(3) of the Act) which can be better sub-served by restoring the Company struck off for mere statutory non-compliances as by restoring the name of Opax Web Private Limited, the legal rights of any stakeholder including the respondent no. 3 were neither jeopardized nor infringed. (Refer para no. 31 at Page no. 217 of the Appeal). Rather, it is the appellant along with all other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpanies. 6.That the Ld. Tribunal escaped to notice that the respondent no. 3 cannot be heard to say that the appellant admittedly a Director, Shareholder and even creditor of Opax Web Private Limited having stakes in the Company, was not entitled to seek restoration of name of the Company in the Register of Companies as due to personal matrimonial disputes of the respondent no. 3, Respondent no. 3 is not associated with the Company since 2017 and was totally out of the affairs of the Company. Respondent no. 3 has succeeded to rawhide his malafide intention to thwart the course of law on the face of his admission that due to his personal matrimonial disputes he is not associated with the company since 2017. Consequently Respondent no. 3 indirectly admitted that due to his disassociation with the company since 2017, he could not honour his statutory obligation to file returns with the office of respondent no. 1 and the name of the Company was struck off. Ultimately it is the respondent no. 3, who must be made liable for all the penalties, fines to be imposed by this Appellant Tribunal/respondent no. 1 and/or additional fees to be paid, if this appeal is allowed after restoration of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l disputes with the Company and its management vide para 2(vii) at page 186 of the Appeal, where the respondent no. 3 stated that "That respondent no. 3 is not willing to do any business in association with the applicant" (appellant herein). The Company is a separate legal entity, which is distinct from its members and directors. Hence admittedly disassociation of respondent no. 3 with the company since 2017 due to his personal matrimonial disputes made the respondent no. 3 personally liable for all costs, penalties, fines, additional fees etc. as respondent no. 3 neither proposed the name of any other director in his place due to his personal matrimonial disputes nor filed the statutory returns from the financial year 2015-16 onwards with the office of respondent no. 1, which resulted in struck off the name of the company. Further it is submitted that from the bank statements, Income Tax Return, Unsecured Loan payable, other documents and balance sheets (which were verified from Bank Statements for the relevant period and certified by the statutory auditor of the company) pertaining to the financial years 2015-16, 2016-17, 2017-18 and 2018-19 of the company on records, it is une ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ff its name by ROC on 08.08.2018 a As per the Balance Sheets of the company as at 31.03.2018 and 31.03.2019 produced by the appellant in his appeal (Please refer to page nos. 112-118 and 122-128 of the appeal), the following figures show that the company was not and could not be in operation or carrying on business at the relevant time:- Particulars As at 31.03.2018 (In Rs.) As at 31.03.2019 (In Rs) Fixed Assets 0.00 0.00 Inventories 0.00 0.00 Trade Receivables 0.00 0.00 Long Term Borrowings 0.00 0.00 Trade Payables 0.00 0.00 Bank Balance 497.64 In a similar situation, this Hon'ble Appellate Tribunal in the matter of Alliance Commodities Private Limited Vs Office of Registrar of Companies [2021] 225 CC 435 (NCLAT-Del) have held that the finding of NCLT that the appellant-company was not doing the intended business cannot be termed erroneous. b. No 'vouchers' or 'bills' have been placed on record to show that there were any dealings of the company during the relevant period. C. No 'bank statement' for the financial years 2015-16, 2016-17, 2017-18 and 2018-19 have been placed on record. The Bank Statement for the period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Auditor's Report thereupon is in violation of Section 134 of the Companies Act, 2013. Thus the Balance Sheets attached with the present appeal cannot be treated as the Balance Sheets of the Company. d) Directors' Reports are not attached to the Balance Sheets which is a necessary legal document in terms of Section 134 of the Companies Act, 2013. e) The Balance Sheets have not been considered and approved at any Annual General Meeting of the company. f)The fact is that the appellant has got these Balance Sheets prepared unilaterally for the purpose of filing the appeal under section 252(3) of the Companies Act, 2013. The Balance Sheets have been falsely prepared by putting back dates in them. g) It is significant to mention that the appellant and respondent No.3 were only two directors of the company. The appellant was in whole-time employment with a US based Company namely Lunarpages Internet Solutions and respondent no.3 was not able to attend the business of the company because he was disturbed in his personal matrimonial disputes. So no business was being carried out in the company. 3.Otherwise also it is not 'just' to restore the name of the company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 248 (1) (c) of the Companies Act, 2013 read with Rule 9 of the Rules, 2016 vide Notice in the form of STK-7 dated 08.08.2018." The appellant is himself relying upon this reply of ROC. Hence, it does not lie in the mouth of the appellant to say that the Registrar of the Companies failed to issue prior notices under the Companies (Removal of names from the Register of Companies) Rules, 2016 to the appellant before removing the name of the company. Moreover, the appeal has been filed under Section 252(3) and not under Section 252(1) which shows that the appellant is not aggrieved by the order of the Registrar of Companies under Section 248 of the Companies Act, 2013. 5. The company never applied for 'Dormant' status The plea of the appellant that the Registrar of Companies was required to first make the company dormant in terms of Section 455(4) of the Companies Act, 2013 before striking off the name of the Company is wholly fallacious and untenable in law. The Registrar on its own cannot grant the status of dormant company. It is the conscious decision of a company itself. The company has to make an application under Rule 3 of the Companies (Miscellaneous) R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ditional fee and penalty for filing of pending financial statements and annual returns with ROC. Without conceding that the appeal is liable to be dismissed, it is submitted that if the name of the company is restored, the Company will have to file all its pending Balance Sheets (Form AOC-4) and Annual Returns (Form MGT-7) for the FY 2015-16, 2016-17, 2017-18, 2018-19, 2019-20 and 2020-21 with the Registrar of Companies. For filing these documents with ROC, the company will have to pay fee and additional fee which may exceed Rs.10,00,000/- in aggregate as per the rates prescribed under Rule 12 of the Companies (Registration Offices and Fees) Rules, 2014 read with Section 403 of the Companies Act, 2013. Moreover, in case penalty is also imposed by ROC on late filing of these documents, then the total amount payable to ROC will run into millions of rupees. The Company is closely held private company with only two share holders and such a huge financial burden will be impossible to bear. In the matter of Registrar of Companies Vs Goouksheer Farm Fresh Private Limited and Another [2020] 223 CC 583 (NCLAT-Del), this Hon'ble Appellate Tribunal have held that "One cannot brush aside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as striking off name of the company in question under the provisions of Section 248 of the Companies Act is concerned the appellant has not raised any dispute that procedure under the said provisions was not followed. In the written submission of the ROC also detail has been mentioned regarding following the procedure prescribed under Section 248 of the Companies Act which has not been disputed by the appellant otherwise the appellant would have preferred the appeal under Section 252(1) of the Companies Act. The appellant has filed application/appeal under Section 252(3) of the Companies Act which empowers the NCLT to pass an order of restoration of a striking off company if the NCLT is satisfied on the basis of plausible material that struck off company was carrying on business or in operation or even otherwise it was just that the company may be restored. Considering the fact that the company was having two directors with 50% shareholding which has not been disputed and one of the director who is Respondent No.3 has come forward with a stand that the company in question was not either doing business or operating, in such situation there is no reason in passing an order for restor ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
