Akash Ganga Builders Private Limited vs Registrar Of Companies, Nct Of Delhi & ...

Akash Ganga Builders Private Limited ...Appellant B-20, Ansal Chamber-I, Bikaji Cama Place, New Delhi

Vs

Registrar Of Companies, NCT of Delhi & Haryana ....Respondent 4th Floor, IFCI Tower, 61, Nehru Place New Delhi-110019

Present: For Appellant: Mr. Soumya Dutta, Advocate

For Respondent: Ms. Aparna Mudiam, Assitant ROC

ORDER

24.11.2017: Heard counsel for the appellant and the assistant ROC for

respondent Registrar of Companies. Both the sides have filed affidavits in

compliance of orders dated 3rd November, 2017. It can be seen that the

appellant company was on earlier occasion struck off by the Registrar of

Companies for non filing of annual returns and balance sheets for 13 years,

under section 560(6) of The Companies Act, 1956 ("Act" in brief). The appellant

moved the Hon'ble High Court of Delhi and the High Court passed orders to the

following effect:

"1. This petition has been filed under Section 560(6) of the

Companies Act, 1956 ('Act') seeking restoration of Akash Ganga

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Builders Private Limited (hereafter referred to as 'Petitioner

company').

2. The reply to the said petition dated 29th April, 2013 of the

Registrar of Companies ("ROC") has been perused. It is pointed out

that the Petitioner company has not filed its annual returns and

balance sheets from 2000 to 2012 and other statutory forms.

3. In view of the fact that the annual returns and balance sheets

have not been filed by the Petitioner company for a period of nearly

thirteen years. Learned counsel for the Petitioner states that the

Petitioner company would pay additional cost along with filing fee,

as applicable, to the ROC against filing of the abovesaid

documents.

4. Having considered the above submissions, it is directed that

subject to the petitioner paying Rs. 20,000/- as costs to the Central

Government within six weeks, the name of the Petitioner Company

shall stand restored and its status would be changed from

'inactive' to 'active'. Within eight weeks thereafter, the Petitioner

will file all its statutory documents, including the annual returns

and balance sheets from 2000 to 2012 and other statutory forms by

filing the additional fee, as applicable, on the actual date of filing in

terms of the Act and the Rules thereunder."

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Both sides agree that after the above order was passed, the status of the

appellant was changed from 'inactive' to 'active'. It is stated by counsel for

appellant that paid up capital was enhanced to Rs. 1,50,000/- in March 2013.

The affidavits filed show that the appellant filed some annual returns and

balance sheets of some years. The affidavit of appellant itself shows that all the

returns and balance sheets have not been filed. As per affidavit dated

20.11.2017 of ROC, appellant has not filed Annual Returns for the period 2008

to 2011. Thus the order of the High Court was not complied fully, and in the

given time.

The respondent Registrar of Companies had given another notice dated

11th February, 2015 (Pg. 48 of Paper Book) still complaining about non

enhancement of the minimum paid up capital and non filing of annual returns

for 2008 to 2011. Other defaults were also pointed out. Subsequently again the

company was struck off on 29.05.2015.

The appellant moved learned National Company Law Tribunal, New Delhi

and after hearing the parties, for reasons recorded NCLT rejected the petition

finding that statutory compliances were not there, vide Impugned Order dated

30.06.2017. Hence this appeal.

Looking to the fact that the annual returns for the orders from

2008 to 2011 have admittedly not been filed till now, it would be difficult to

find fault with the action of Respondent and the impugned order challenged

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before us. The learned counsel for the appellant is submitting that because of

the subsequent order of the Registrar of Companies striking off the Appellant,

the appellant had not been able to file the returns and take further steps. It is

also stated that there are only two shareholders and two directors in the

company out of which one has expired and for want of DIN number of the other

director the compliances could not be done.

The affidavit dated 16.11.2017 of the appellant shows blame being put

on the web-site and CA also who could not find ways to help appellant in tiding

over the difficulties regarding death of a shareholder and non filing of the

returns etc. We find that these are matters of day to day functioning which the

company has to itself deal with. Such excuses for defaults over so many years

cannot be accepted. In spite of earlier opportunity given by High Court,

Appellant did not learn and do the compliances called for.

The learned assistant ROC says that after the order of the High Court

when the appellant was converted from inactive to active, because there was

non-compliance continuing, the ROC vide Gazette notification dated 8th

September, 2015 struck off the name of the appellant in terms of sub section of

5 Section 560 of the Companies Act, 1956. It appears from the impugned order

that the appellant moved the NCLT without making out grounds under

sub section 6 of Section 560 which required the appellant to show that the

Company was at the time of striking off carrying on business or that it is just

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that the company be restored to the register. Even now no such material is

available on record. No just grounds are made out to restore the appellant. We

do not find any reason to interfere in the impugned order and the appeal is

dismissed.

No orders to costs.

(Justice A.I.S. Cheema) Member (Judicial)

(Justice Bansi Lal Bhat) (Balvinder Singh) Member (Judicial) Member (Technical)

sh/nn

Company Appeal (AT) No. 255 of 2017