National Company Law Appellate Tribunal
M/S. Bbc Developers Private Limited vs Register Of Companies Odisha on 6 December, 2022
NATIONAL COMPANY LAW APPELLATE TRIBUNAL, PRINCIPAL BENCH,
NEW DELHI
Company Appeal (AT) No. 83 of 2021
[Arising out of order dated 28.12.2020 passed by the National Company Law
Tribunal (Cuttack Bench, Cuttack) in CP (Appeal) No. 252/CB/2020]
IN THE MATTER OF:
M/s. BBC Developers Private Limited,
Having its Registered office At:- Gayatri Vihar
28, Cantonment Road, Cuttack-753001, Odisha.
....... Struck Off.
Mr. Biswajit Karmakar,
S/o Ambika Charan,
Karmakar residing at
Mahidas Bazar,
Cuttack- 753001, Odisha.
......... Appellant.
Versus
Registrar of Companies, Odisha
Having its Office at Corporate Bhawan,
2nd and 3rd Floor, Plot No. 9(P), Sector-1,
CDA, Cuttack, Odisha-753014 ....... Respondent.
Present:
For Appellant: Mr. Ashok Panigrahi, Mr. R. Chandrachud, Ms.
Geetanjali Das Krishnan, Advocates.
For Respondent:- Mr. Kamal Kant Jha, Advocate for RoC.
2
JUDGMENT
(06th December, 2022) Justice Anant Bijay Singh;
The present Appeal under Section 421 of the Companies Act, 2013, has been preferred by the Appellant being aggrieved and dissatisfied by the order dated 28.12.2020 passed by the National Company Law Tribunal (Cuttack Bench, Cuttack) in CP (Appeal) No. 252/CB/2020 whereby and whereunder appeal filed by the one of the Directors/Shareholders, Mr. Biswajit Karmakar, of the Struck Off Company- M/s BBC Developers Private Limited for restoration of the name of the Company in the Register maintained by the Registrar of Companies (RoC) was dismissed by the Tribunal.
2. The facts giving rise to this Appeal are as follows:
i) The Appellant Company was incorporated under the Companies Act, 1956 on 25.04.2011 as a Private Limited Company with the office of Registrar of Companies, Orissa. The authorized share capital of the Appellant Company is Rs. 10,00,000/- divided into 1,00,000 equity shares of Rs. 10 each. The issued subscribed and paid-up capital of the Company is Rs. 1,00,000/- divided into 10,000/- equity shares of Rs. 10/-. The Company was managed by two Directors namely i) Chandan Samantaray and ii) Biswajit Karmakar. The said Directors were each in possession of 50% shares, holding 5000 shares each.
ii) The Appellant Company for the purpose of business purchased lands (Immovable Properties) on different dates in its name which are as follows:
Company Appeal (AT) No. 83 of 2021 3 • The Appellant Company purchased land vide Registered Sale Deed for the land measuring Ac. 0.31 Decimal for a consideration amount of Rs. 3,41,000/- dated 27.12.2011.
• The Appellant Company purchased land vide Registered Sale Deed dated 13.09.2013 measuring Ac. 0.16 Decimal for a consideration amount of Rs. 3,00,000/-.
• The Appellant Company vide Registered Sale Deed dated 04.05.2013 purchased land measuring Ac.0.11 Decimal for a consideration amount of Rs. 4,00,000/-.
• The Appellant Company vide Registered Sale Deed dated 13.11.2013 purchased land measuring Ac0.21.5 Decimal for a consideration amount of Rs. 2,50,000/-.
• The Appellant Company vide Registered Sale Deed dated 24.01.2014 purchased land measuring Ac.0.11 Decimal for a consideration amount of Rs. 1,10,000/-.
• The Appellant Company has duly mutated the name of the Company against the purchased lands.
iii) The Appellant Company has been operating since the date of its incorporation i.e. 25.04.2011. The Appellant Company could not file Financial Statements and Annual Returns from Financial Year 2012-13 onwards due to management issues and inadvertence and business complexities. Moreover, the Company could not obtain professional advice as per the new Companies Act, 2013 because of inadvertence. All assets of the Company remained intact and it Company Appeal (AT) No. 83 of 2021 4 never became defunct. The accounts of the Company have been audited every year.
iv) Further case is that on 07.07.2017, the Respondent published the Notice of striking off and Dissolution under Section 248(5) of the Act wherein the name of the Appellant Company was mentioned in the list of the companies whose name was to be struck off from the Register of the Companies. The name of the Appellant Company was mentioned in the list of the companies to be struck off from the Register of the Companies against Serial No. 1304. Aggrieved by the actions of the Respondent, the Appellant Company filed Appeal under Section 252 of the Act before the NCLT seeking restoration of its name on the Register maintained by the Respondent and after the parties the NCLT dismissed the said Appeal which led to filing of this Appeal.
3. The Ld. Counsel for the Appellant during the course of argument and in his memo of Appeal submitted that while passing the impugned order the Tribunal failed to consider that all the assets of the company remained intact and in such circumstances it cannot be concluded that the Appellant Company is not carrying on its business within the meaning of Section 248 of the Act. The Tribunal has also not considered the sale deeds because it is vernacular language, the same has been filed before this Tribunal and also Audit Reports along with Balance Sheet and Financial Statements of the Appellant Company from 2012-2013 to 2019-2020 which shows that the Company is on going concern and doing business.
Company Appeal (AT) No. 83 of 2021 5
4. It is further submitted that while passing the impugned order the Tribunal failed to consider the fact that the Appellant has not received any notices from the Respondent prior to the Gazette Notification dated 07.07.2017 and further Section 248 of the Act mandates notices are required to be issued before striking off the name of the Company from the register of the Respondent which has not been followed in the present case. The Appellant Company neither received any show Cause Notice nor it afforded any opportunity of being heard before the action of striking off its name was taken by the Respondent. The Appellant only after receiving the Gazette notification came to know about its name being struck off from the Register of Respondent. Based on these submissions, the impugned order is set aside and the Appeal may be allowed.
5. On the other hand, the Ld. Counsel for the Respondent during the course of argument and in his reply submitted that the Appellant Company was the continuous non-filing of the statutory returns i.e. financial statements and Annual Returns since the financial year ending 31.03.2012 onwards. Thereafter, the Respondent issued Notice STK-1 i.e. a show cause notice under Section 248(1)(c) of the Companies Act, 2013 to the Appellant company enquiring whether the said company was carrying on any business or was in operation, but no reply to the said show cause notice was received by the Respondent's office. Subsequently, the Respondent published in the Official Gazette and Newspaper for the information of the general public regarding striking off the name of the company in Form No. STK-5/5A. In view of the submissions, the Company Appeal (AT) No. 83 of 2021 6 Tribunal rightly observed that the subject company had not been a going concern and was having any business operations.
6. After hearing the parties, going through the pleadings made on behalf of the parties and in view of the fact that the Appellant Company have purchased the lands between 2011-2013 and Audit Reports along with Balance Sheet and Financial Statements of the Appellant Company from 2012-2013 to 2019-2020 shows that the Appellant Company is having substantial movable as well as immovable assets. Therefore, it cannot be said that the Appellant Company is not carrying on any business or operations. Hence, we are of the view that the order passed by the NCLT (Cuttack Bench, Cuttack) as well as RoC, Odisha is not sustainable in law.
7. In view of the aforenoted, we set aside the impugned order dated 28.12.2020 passed by the National Company Law Tribunal (Cuttack Bench, Cuttack) in CP (Appeal) No. 252/CB/2020. The name of the Appellant Company be restored to the Register of Companies subject to the following compliances.
i) Appellant shall pay costs of Rs. 1,00,000/- (Rupees one Lakh) to the Registrar of Companies, Odisha within 30 days.
ii) 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.
iii) Inspite of present orders, RoC will be free to take any other steps punitive or otherwise under the Companies Act, 2013 for non-filing/late Company Appeal (AT) No. 83 of 2021 7 filing of statutory returns/documents against the Company and Directors.
The instant Appeal is allowed to the above extent.
8. Registry to upload the Judgment on the website of this Appellate Tribunal and send the copy of this Judgment to the National Company Law Tribunal (Cuttack Bench, Cuttack), forthwith.
[Justice Anant Bijay Singh] Member (Judicial) [Ms. Shreesha Merla] Member (Technical) New Delhi 06th December, 2022 R. Nath.
Company Appeal (AT) No. 83 of 2021