9911796707
TMI Blog2024 (3) TMI 292X X X X Extracts X X X X X X X X Extracts X X X X ..... hen the public notice issued by ROC was aimed at weeding out shell companies. Though the annual accounts of the years stated above though were duly prepared but could not be filed, for the reasons stated above, the non-compliance appear to be inadvertent, non-deliberate and unintentional. Admittedly the appellant is ready to comply with all the statutory provisions once the name of the company is restored by the ROC. Thus there are no reason why its name should not be restored as no prejudice would be caused to the ROC if its name is restored. It is not the case of the ROC that the appellant is a shell company or was at any time engaged in syphoning of funds. It is deemed just and equitable to restore the name of the appellant company to the record of ROC and thus the impugned order set aside to restore the name of the company to the Register of Companies subject to the compliances fulfilled - appeal alowed. - ( Justice Yogesh Khanna ) Member ( Judicial ) And ( Mr. Ajai Das Mehrotra ) Member ( Technical ) For the Appellant : Mr. Rajive Maini , Ms Shriya Maini , Advocates For the Respondent : Mr. B. Rama Ambedkar , Asstt. Director , ROC JUDGEMENT JUSTICE YOGESH KHANNA , MEMBER ( J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1983 and the appellant has failed to produce any document to show that it is still in possession of the said land and they are paying the land revenue/rent. In the absence of any such document, we are unable to accept the contention of the Appellant. In the circumstances, we would like to refer to the Judgement of Hon'ble NCLAT in the matter of Alliance Commodities Private Limited Vs. Office of Registrar of Companies, West Bengal, Company Appeal (AT) No.20 of 2019 : 9. Section 252 (3) of the Companies Act, 2013 empowers the Tribunal to order restoration of a Company whose name has been struck off from the Register of Companies, if such company, any member or creditor or workman thereof feeling aggrieved by such striking off applies before the Tribunal seeking restoration of the struck off company to the Register of Companies before expiry of twenty years from the publication in Official Gazette of notice under Section 248(5). The exercise of such power is properly regulated and depends upon satisfaction of the Tribunal that the Company at the time of its name being struck off was carrying on business -10- Company Appeal (AT) No. 20 of2019 or in operation or otherwise it is just ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rney given to him, Shri Subhash Gambhir purchased a property situated at Bhakti Bhawan Estate on a covered area of 3570 square fee or 322 square metres with appurtenant compound (open) of 2284 square feet or 212 square metre situated in Kulri Mussoorie, Uttarkhand 5. In the years 2001 the said company was transferred by earlier directors in favour of late Mr. Manohar Lal Nagpal and his four sons who were all appointed as Directors on 16.01.2001 with an active din status. 6. However, from 2001 onwards all key managerial decisions were taken by Late Shri Manohar Lal Nagpal and the other four directors i.e. the sons were not involved in the operations of the company. Due to his old age, Sh Manohar Lal suffered from various ailments and was not keeping well, hence could not undertake the compliances viz. filing annual returns and balance sheets; though AGM Meeting was done on 30.09.2011. Hence the company could not file its financial statements for the said financial years with the ROC as the only one director who was looking after the company and was aware about its compliances could not do the needful due to his ill health, despite the financial statements being ready. 7. Even Mr H.L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplicant. It is argued these documents being material of sterling quality have now been placed before this Hon ble Tribunal with an application seeking permission to lead additional evidence. The said receipts of water bill, electricity bill and rent receipts are pre-dating the impugned order and are annexed in the Appeal Paper Book at Annexure A-14 and A-15. 12. The company holds property and all the four directors are willing to give an undertaking for three years they will not sell the property, should the name of the company be restored on the rolls of the ROC. The brothers as directors intend to use this asset by developing it and starting a home-stay business for their daily survival and livelihood. They have also received a proposal from Brentwood Hotel, annexed with the Appeal. 13. Section 252(3) of the Companies Act, 2013 deals with the present situation and is as under:- If a company, or any member or creditor or workmen thereof feels aggrieved by the company having its name struck off from the register of companies, the Tribunal on an application made by the company, member, creditor or workman before the expiry of twenty years from the publication in the Official Gazett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... financial statement could not be filed with the ROC inadvertently since father of the present directors was old and ill and it being a joint family set up with an incomplete professional/legal guidance and even their Chartered Accounts had unfortunately expired. 17. The Master Data details taken from the Ministry of Corporate Affairs website also show the last AGM was convened on 30.09.20211 and the last balance sheet was filed on 31.03.2011 which shows the activities were going in the company in 2011 and admittedly Nil revenue from operations is not a sole criteria for a company s name to be struck off from the rolls of ROC. The company is holding a fixed assets and is not a shell transactionary vehicle. More so admittedly the directors as well as the company were not served with any notice in person, hence could not submit a representation. Thus the act of the Respondent in striking off the appellant from the rolls of ROC had caused a grave prejudice to the appellant herein, more specifically when the public notice issued by ROC was aimed at weeding out shell companies. 18. Here, we would also like to point out the reply filed on behalf of the ROC which read as under: Further, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d notice. Thereafter, 1st respondent vide notice dated 30.6.2017 (Page87) struck off the name of the 2nd respondent from the register of companies. Now these appellants had filed petition/appeal before the NCLT stating that the company is going concern and they have valuable assets, long terms loan and advances and filed petition/appeal under Section 252(3) of the Act. If the appellants had pleaded it before the ROC, then the ROC before striking off the name of the company under Section 248(5), would have considered the pleas now taken under Section 248(6) of the Companies Act, 2013. The appellants have now filed with this appeal the Balance Sheets for the years 2014, 2015 and 2016 which they could not file with ROC as the company name was struck off. Seeing the balance sheets and the company s huge investment which the company is having since 2011 and there are large amount of the loan and advances, it is possible that creditors could also be aggrieved persons, feeling aggrieved of company s name being struck off, may file an application for restoration of company s name, if its name is not restored. Thus, it would be just and equitable to restore the name of the company to even a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
