National Company Law Appellate Tribunal
Sudeshgupta Shareholder & Director Of ... vs Registrar Of Companies & Anr on 4 May, 2023
NATIONAL COMPANY LAW APPELLATE TRIBUNAL, PRINCIPAL BENCH,
NEW DELHI
Company Appeal (AT) No. 218 of 2020
[Arising out of order dated 05.10.2020 passed by the National Company Law
Tribunal (New Delhi, Bench-II) in Appeal No. 549/252(ND)/2019]
IN THE MATTER OF:
Sudesh Gupta
Shareholder & Director of the Company
32B, Pocket-F, Mayur Vihar Phase-II,
New Delhi-110091.
E-mail: [email protected]
Mobile: 9810836690.
....... Appellant.
Versus
1. Registrar of Companies,
NCT of Delhi & Haryana
4th Floor, IFCI Tower, 61 Nehru Place,
New Delhi-110019
Mail ID- [email protected] ...... Respondent No. 1.
2. Income Tax Department, Dept of Revenue, GOI
Principal Commissioner of Income Tax,
CR Building, ITO, New Delhi-110002
Mail ID- [email protected]
OR, Alternative Address,
DCIT (High Court Cell), Room No. 428 &429,
Delhi High Court, New Delhi-110003. ....... Respondent No. 2.
Present:
For Appellant: Mr. Iswar Mohapatra, Advocate.
For Respondent:- None.
2
JUDGMENT
(04th May, 2023) 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 05.10.2020 passed by the National Company Law Tribunal (New Delhi, Bench- II) in Appeal No. 549/252(ND)/2019 whereby and whereunder appeal filed by the Appellant for restoration of the name of the Company in the Register maintained by the Registrar of Companies (RoC), NCT of Delhi and Haryana was dismissed by the Tribunal.
2. The facts giving rise to this Appeal are as follows:
i) The Appellant Company, M/s Choice Automobiles Private Limited was incorporated on 05.05.2000 with its registered office at 32-B, Pocket-F, Mayur Vihar Phase, Delhi-110091 having CIN No. U50300DL2000PTC105551. The Appellant Company is involved in the business of automobiles and as per the main objects as mentioned in its MoA, the Appellant Company carry the following activities:
"To carry on the business as importers, exporters, traders, buyer, sellers, suppliers, indenters, agents, sub agents, jobbers, brokers, repairers, cleaners or otherwise deal in all kinds and classes of component parts, replacement parts, spare parts, accessories, tools, implements, fittings inclusive of all types of axles, prop sellers, shafts and universal joints, ornamentation and decorative Company Appeal (AT) No. 218 of 2020 3 parts for motors, vehicles, trucks, tractors, motor-cycles, cycle cars, cycle, scooters, buses, omnibuses, of every description and vehicles and products of all descriptions whether propelled or used by means of patrol, spirit, steam, oil vapor, gas, coal, electricity, petroleum, atoms or any other motive or mechanical power."
ii) The Registrar of Companies, NCT of Delhi & Haryana i.e. the Respondent No. 1 herein, struck off the company's name i.e. M/s Choice Automobiles Private Limited from the Register of Companies due to the reason that the Company is not carrying on any business or operation for two immediately preceding financial years and has not made any application within such period for obtaining the status of Dormant Company under Section 455 of the Companies Act, 2013 and Registrar of Companies vide Notice No. - ROC/DELHI/248(5)/STK-7/4865 dated 8th day of August, 2018 struck off the name of the Company. The name of the Company is appearing in serial no. 4399 of the public notice dated 8th August, 2018. Thereafter, the Appellant filed appeal against the order of Registrar of Companies for restoration of name of the Company under Section 252 of the Companies Act, 2013 and after hearing both the parties, the Tribunal passed the order impugned dated 05.10.2020 which led to filing of this Appeal.
3. The Ld. Counsel for the Appellant during the course of argument and in his written submissions submitted that the impugned order completely ignores the provision of Section 252(2) of the Companies Act, 2013 which prescribes 3 Company Appeal (AT) No. 218 of 2020 4 (Three) conditions which are required to be satisfied before exercising jurisdiction for restoration by Tribunal:
a) the company was, at the time of its name being struck off, carrying on business or
b) in operation or
c) otherwise it is just that the name of the company be restored to the register of companies.
4. It is further submitted that the Company has Commercial Property bearing Plot No. B-235, Sector 16, Noida which was allotted by New Okhla Industrial Development Authority (NOIDA) for the purpose of Auto Parts Shop Repair Workshop & Motor Garage and the present market value of the land and Building is around Rs. 1,60,00,000/-. The Tribunal failed to appreciate that the Company is in operation at the time of struck off by ROC as the Company was paying electricity bill regularly. Electricity bill from July, 2017 to September, 2020 is enclosed to prove that the company was in operation. Further, the Tribunal in several instances allowed appeal to restoring the name of the company struck off by ROC on the just and equitable ground if the company has immovable property. The referred cases are:
a) Culcatta Rubber Factory Pvt. Ltd. & Ors. Vs. Registrar of Companies, Delhi & Haryana in Company Appeal (AT) No. 177/2019 reported in 2019 SCC Online NCLAT 851;
b) Basant Kumar Berlia & Ors. Vs. Registrar of Companies, West Bangal in Appeal (AT) No. 171/2018.
Company Appeal (AT) No. 218 of 2020 5
c) M/s Insys Instruments Systems (India) Pvt. Ltd. Vs. Registrar of Companies (Karnataka) in Appeal (AT) No. 231/2018.
5. It is further submitted that the NCLT failed to appreciate that when the company has commercial property, restoration of the company ought to have been allowed on the ground of just and equitable, one of the grounds specified in Section 252(3) of the Companies Act, 2013 in the interest of justice. The other way the restoration of the company ought to have been allowed on the ground that the company is in operation as it is paying electricity bills at the time of struck off of the company.
6. It is further submitted that Respondent No. 1 has made wrong observation on the basis of order made by the Tribunal dated 05.10.2020 in relation to fact that the company have no immovable property in its name which is totally false and unjustified because the company has enclosed property paper with the appeal filed before NCLT under Section 252 of the Act which is enclosed at pate 114 to 131 of the appeal before this Tribunal. Further, the NCLT in para 6 of the impugned order recorded that the company has immovable property, so averment of Respondent No. 1 is entirely false and meaningless.
7. On the other hand, the Ld. Counsel for the Respondent No. 1/Registrar of Companies in his Reply it is stated that as per the available records on MCA 21 Portal, the Appellant Company - Choice Automobiles Private Limited was incorporated on 05.05.2000 under the provisions of Companies Act, 1956. Further, as per records, the last Directors of the Appellant Company were i) Sudesh Gupta, ii) Promila Mittal. The Appellant Company has filed its Financial Company Appeal (AT) No. 218 of 2020 6 Statements till financial year 31.03.2015, due to which the Respondent No. 1 had reasonable cause to believe that the Appellant Company was not in operation and in terms of provision of Section 248(1) Notice was sent to the Appellant company and also to its directors by invoking the provisions of Section 20 of the Act. The Appellant company has been issued STK-1 in May, 2018. Further, in terms of Section 248(4) of the Act, public notices in form STK-5 were issued to 31,250 Companies including the Appellant Company by making publication in official gazette on 18.06.2018 and these notices have also been places on the website of Ministry of Corporate Affairs.
8. It is further stated that pursuant to sub-Section (5) of Section 248 of the Act, and Rule 9 of the Companies (Removal of Names of Companies from the Register of Companies) Rules, 2016, after expiry 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 08.08.2018. The Balance Sheets annexed by the Appellants for the Financial Year from 2015-16 to 2017-18 indicate 'nil' revenue generations from its operations.
9. After hearing the parties and going through the pleadings made on behalf of the parties, we observe that the Company has Commercial Property bearing Plot No. B-235, Sector 16, Noida which was allotted by New Okhla Industrial Development Authority (NOIDA) for the purpose of Auto Parts Shop Repair Workshop & Motor Garage and the Company was paying electricity bill regularly from July, 2017 to September, 2020. Further, the Respondent No. 1/Registrar Company Appeal (AT) No. 218 of 2020 7 of Companies in his reply before the NCLT has stated that it has no objection if the name of the Company is restored on proving by the Company that it was carrying on business or was in operation and the Company be also directed to file financial statements up to date with appropriate filing and additional fees. Keeping in view of the above facts, 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 National Company Law Tribunal (New Delhi, Bench-II) as well as Registrar of Companies, NCT of Delhi & Haryana is not sustainable in law.
10. In view of the aforenoted, we set aside the impugned order dated 05.10.2020 passed by the National Company Law Tribunal (New Delhi, Bench- II) in Appeal No. 549/252(ND)/2019. The name of the Company be restored to the Register of Companies subject to the following compliances.
i) Appellant Company shall pay costs of Rs. 4,00,000/- (Rupees Four Lakhs) to the Registrar of Companies, NCT of Delhi & Haryana within eight (8) weeks from the passing of this Judgment.
ii) After restoration of the Company's name in the Register maintained by the Registrar of Companies, the Company shall file all their Annual Returns and Balance Sheets. The Company shall also pay requisite charges/fee as well as late fee/charges as applicable.
Company Appeal (AT) No. 218 of 2020 8
iii) Inspite of present orders, Registrar of Companies will be free to take any other steps punitive or otherwise under the Companies Act, 2013 for non-filing/late filing of statutory returns/documents against the Company and Directors. The instant Appeal is allowed to the above extent.
11. 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 (New Delhi, Bench-II), forthwith.
[Justice Anant Bijay Singh] Member (Judicial) [Naresh Salecha] Member (Technical) New Delhi 04th May, 2023 Ram Nath.
Company Appeal (AT) No. 218 of 2020