Aster Venture Pvt Ltd vs Registrar Of Companies

Aster Venture Pvt. Ltd. ...Appellant(s)

Versus

Registrar of Companies, Mumbai ...Respondent(s)

Present: For Appellant : Dr. Ravindra Chingale, Ms. Sumbhul Ausaf, Advocates. For Respondents : Mr. Sanjib Kumar Mohanty, Ms. AnushkaJakhodia, Mr. Subesh Kumar Sahoo, Advocates.

ORDER

(Hybrid Mode)

03.10.2024: This appeal is against the impugned order dated

14.10.219 filed by the Appellant company-M/s Aster Venture Pvt. Ltd.

against the Registrar of Companies, Mumbai, seeking to restore the name of

the company in the Register of Companies maintained by the Registrar of

Companies, Mumbai.

2. Admittedly the company was incorporated on 29.11.2007 under the

Companies Act, 1956 as a Private Limited Company, limited by shares with

the Registrar of Companies, Mumbai. It was alleged the company had failed

to file its Financial Statements and Annual Returns for the Financial Years

w.e.f. 31.03.2014 to 31.03.2018, i.e. for five years.

3. On 03.10.2018, the Respondent struck off the name of the company

under Section 248(1) of the Companies Act, 2013 for not carrying on any

business operations and failure to make statutory compliances. 2

4. It is submitted by the Learned Counsel for the Appellant the Appellant

company has been active since incorporation and has also been maintaining

all requisite documents, as per the provisions of Companies Act, 2013 and

the default occurred due to severe health condition of one of its two

directors.

5. It is submitted they could not file the Financial Statements since the

year 2014 as one of the Directors namely Mrs. Seema Narendar Poddar was

suffering from acute kidney issues. The another director was her husband.

As a proof of submissions, the Learned Counsel for the Appellant has taken

us to documents annexed, especially at page 123 of the Appeal paper book

which is a medical slip of the year 2019 issued to Mrs. Seema Narendar

Poddar showing Renal Disease since 2013. It is submitted she was suffering

from such renal disease since the year 2013 and her husband, viz. the

second Director, took care of her & hence could not do any business & thus

a prime reason for not filing Financial Statements and for NIL operations of

the Appellant company.

6. It is submitted by the Learned Counsel for the Appellant the company

had rather invested an amount of Rs. 3 Crores in M/s Victoria Enterprises

Limited in 5% optionally Convertible Preference Shares of Rs. 1,000/-; in

30,000/- shares and Appellant company needs to recover such investment.

7. It is further submitted if the Appellant company is not restored it shall

not be able to recover its investment made in 2008 and the directors

undertake to comply with all statutory requirements, including filing of

financial statements/returns.

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8. It is argued it is just and proper for the appellant company, that the

name of the company be restored in the Register of the Companies as

maintained by the Registrar of the Companies/Respondent. Heard.

9. In"Sidhi Singh &Anr. V. Registrar of Companies, Delhi &Anr.,

Company Appeal (AT) No. 49 of 2021"this Tribunal held:

"9. We have gone through the records and submissions made by the Learned Counsel for the Appellants and Respondents. The company was struck off on 30.06.2017. As per the report of the Income Tax Department, the company had filed returns up to Assessment Year 2020-21 and the Appellants had submitted copies of Audited Accounts up to March 2020 which are part of the Appeal Paper Book. The accounts reflect that the company has land, plant and machinery as well as loans and advances to recover. We have also gone through the decisions of the co- ordinate Benches in the case of GRS Properties Private Limited Vs. Office of Registrar of Companies, NCT of Delhi & Haryana, in Comp. App. (AT) No. 165 of 2021, Manacles Transformers Pvt. Ltd. &Anr.Vs. Registrar of Companies, Delhi, in Com. App. (AT) No. 175 of 2022, D.D. Finance and Holdings Private Ltd. Vs. Registrar of Companies, NCT of Delhi & Haryana, in Com. App. (AT) No. 112 of 2022 and Krishana Kumar Aggarwal Vs. The Registrar of Companies, in Com. App. (AT) No. 03 of 2022. The relevant portion of judgment in Com. App. (AT) No. 175 of 2022 is as under:

"10. .....In DD Finance and Holdings Private Limited Vs. RoC in Company Appeal (AT) No. 112 of 2022 decided on 05.03.2024 by this Tribunal it was held:-

"14. Now the term otherwise just and equitable under Section 252(3) of the Companies Act, 2013 envisage revival/restoration of the company on the rolls of ROC if it is not a shell company or a company dealing with 4

siphoning funds or advancing loan to sister concern. Rather they have a fixed substantial asset worth crores. The company is still sole absolute owner and in possession of the property situated at Bhakti Bhavan Estate, Kulri, Mussoorie and if the company's name is not restored then, of course, it would result to an irreparable loss and prejudice to the appellant and the fixed assets of company would be a deadlock and would result in wastage of property which is, of course, contrary to the public policy. Admittedly the property is free from all encumbrances.

25. For the reasons aforesaid we find it just and equitable to restore the name of the appellant company to the record of ROC and thus we set aside the impugned order dated 27.05.2022 passed by the Ld. NCLT and direct the ROC, New Delhi to restore the name of the company to the Register of Companies subject to the following compliances:"

10. The relevant portion of the Judgement of this Tribunal dated 08.02.2023, in Comp. App. (AT) No. 165 of 2021, in the matter of 'GRS Properties Private Limited' Vs. Office of Registrar of Companies, NCT of Delhi & Haryana', is reproduced below for reference:

"7. After hearing the parties, going through the pleadings made on behalf of the parties and in view of the fact that the Audited Financial Balance Sheets of the Year 2015-16, 2016-17, 2017-18, 2018-19 & 2019- 20 of the Appellant /Company 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 National Company Law Tribunal (New Delhi, Bench-V) as well as Registrar of 5

Companies, NCT Delhi & Haryana is not sustainable in law."

11. The relevant portion of the Judgement of this Tribunal dated 06.12.2019, in the matter of 'Calcutta Rubber Factory Pvt. Ltd. &Ors. Vs. Registrar of Companies, Delhi and Haryana', 2019 SCC OnLine NCLAT 851, is given below for ready reference:

"11. The company is having a lease hold plot allotted by HUDA and the appellant company undertakes to file the returns and the financial statements after the period 2012-

13. The company was carrying on business but was running into losses which accumulated to Rs. 630589/- from the year ending 31st March, 2013 and loss of Rs. 3500/- and Rs. 3500/- from the year ending as on 2016- 17, 2017-18. From these facts it cannot be said that the company is not carrying on any business. 12. From the above discussions and observations we have come to the conclusion that it would be just that the name of the company is directed to be restored........."

12. In the present case the company had filed Audited Accounts till March 2020 copies of which annexed in the Appeal Paper Book. The said company has also filed Income Tax Returns up to Assessment Year 2020-21 as per the report of the concerned Income Tax Officer. The company has substantial assets and liabilities, it owns property and plant and machinery. Since the company has substantial assets and liabilities, it cannot be said that the company does not carry on any business or operations. No prejudice shall be caused to any one if the company is restored.

13. Considering the above facts and circumstances, we find it just and equitable to restore the name of the company to the records of RoC. The impugned order dated 21.12.2020 passed by the Ld. NCLT in Appeal No. 386/252(ND)/2020 is set aside 6

and the name of the said company M/s. SKS Boilers Private Limited is restored to the Register of Companies maintained by RoC subject to following compliances:-

i. Appellant/Company shall pay costs of Rs. 2,00,000/- (Rupees Two Lakh) to the Registrar of Companies, NCT 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 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. In spite of present orders, RoC will be free to take any other steps punitive or otherwise under the Act for non- filing/late filing of statutory returns/documents against the Company and Directors."

10. In the present case, the company was incorporated in the year 2007

and admittedly, they had filed Audited returns/Accounts till 2013 and has

an asset of Rs. 3 Crores, as on 20.04.2008 viz. 30,000 Convertible

Preference Shares of Rs. 1000/- each as on 20.04.2008 and that the

Appellant company would not be able to recover such amount from M/s

Victoria Enterprises Limited in case the name of the Appellant company is

not restored. We have also gone through the medical history of one of the

Directors of the company showing the reason for not filing of the returns and

for nil. operation of the company during the period from 2014 till 2019. Thus

we are of the view that no prejudice shall be caused to anyone if the name of

the company is restored. The Learned Counsel for the Appellant undertakes

that upon restoration, it shall comply with all its statutory

compliances/requirements. In view of the above, we find it just and equitable 7

to restore the name of the company in the records of Registrar of Companies.

The impugned order dated 14.10.2019 passed by the Ld. NCLT in CP No.

1437/2019 is thus set aside and the name of the said company M/s Aster

Venture Pvt. Ltd. is restored in the Register of Companies as maintained by

Registrar of Companies subject to following compliances:-

i. Appellant/Company shall pay costs of Rs. 3,00,000/- (Rupees

Two Lakh) to the Registrar of Companies, Mumbai within eight (8)

weeks from the passing of this judgment;

ii. After restoration of the Company's name in the Register

maintained by the RoC, the Company shall file all its pending Annual

Returns and Balances Sheets within 8 weeks of such restoration. The

Company shall also pay requisite charges/fee as well as late

fee/charges as applicable;

iii. The RoC shall be free to take any other step(s), punitive or

otherwise, under the Act for non-filing/late filing of statutory

returns/documents against the Company and Directors.

11. The instant Appeal is allowed to the above extent. Connected I.A's, if

any, are also disposed of.

[Justice Yogesh Khanna] Member (Judicial)

[Mr. Ajai Das Mehrotra] Member (Technical)

[Mr. Indevar Pandey] Member (Technical)

R.N./Manu