Brahmeshwar Kumar vs Kush Graphics Private Limited

[Arising out of the Impugned Order dated 30.10.2023 passed by the National Company Law Tribunal, New Delhi Bench-III in Restoration Application No. RA/59/2023 in Company Appeal No. 156/252/ND/2020]

In the matter of: Bramheshwar Kumar S/o Mr. Latiteshwar Kumar Verma R/o at B-207/1, 3rd Floor, Birla Farm Chhattarpur Extension bear Vrindavan Dairy New Delhi. ...Appellant

Versus

Registrar of Companies, NCT of Delhi Ministry of Corporate Affairs 4th Floor, IFCI Tower 61 Nehru Place, New Delhi-110019. ...Respondent Present :

For Appellant: Mr. Parish Mishra, Advocate. For Respondents : None.

WITH

Company Appeal (AT) No. 36 of 2024 & I.A. No. 880 of 2024 [Arising out of the Impugned Order dated 11.09.2023 passed by the National Company Law Tribunal, New Delhi Bench-III in Company Appeal No. 156/252/ND/2020]

In the matter of: Bramheshwar Kumar S/o Mr. Latiteshwar Kumar Verma R/o at B-207/1, 3rd Floor, Birla Farm Chhattarpur Extension bear Vrindavan Dairy New Delhi. ...Appellant Versus 1. Registrar of Companies, NCT of Delhi Ministry of Corporate Affairs 4th Floor, IFCI Tower 61 Nehru Place, New Delhi-110019. 2. M/s Kush Graphics Pvt. Ltd. Registered under the Companies Act, 2013 Having registered office at: F-281, 4th Floor, Flat No. 09 Lado Sarai, New Delhi - 110030. 3. Manish Kumar Kushwaha Koiri Mohalla Bazar, KT Road 27, Asansol, Burdwan, W.B. - 713302.

...Respondents Present :

For Appellant: Mr. Parish Mishra, Advocate. For Respondents : None.

ORDER

(Hybrid Mode)

27.05.2024: Company Appeal (AT) No. 36 of 2024 has been filed against

the order dated 11.09.2023 of National Company Law Tribunal, New Delhi

Bench-III in Company Appeal No. 156/252/ND/2020 whereby the said Appeal

was dismissed for non-prosecution.

2. Company Appeal (AT) No. 35 of 2024 has been filed against the order in

Restoration Application No. RA/59/2023 in Company Appeal No.

156/252/ND/2020 wherein vide order dated 30.10.2023, the Ld. National

Company Law Tribunal, New Delhi Bench-III had dismissed the application

seeking restoration of the said Company Appeal.

3. The Appellant is one of the Directors of M/s Kush Graphics Pvt. Ltd.

(Hereinafter referred as "Company"). The said company was struck off by the

Registrar of Companies of Delhi NCR on 19.11.2019. The Appellant had filed

Company Appeal (AT) Nos. 35 and 36 of 2024 Page 2 of 4 Company Appeal No. 156/252/ND/2020 before the Ld. NCLT for restoration of

the Company on 24.01.2020. Notice was issued by the Ld. NCLT to the

Respondents. Vide order dated 11.09.2021, the Ld. NCLT dismissed the appeal

for non-prosecution. The said order is reproduced bellow for reference:

"This appeal has been filed in the year 2020. The Ld. Counsel for the Appellant last appeared in this matter on 03.02.2020. Therefore, no one appeared on behalf of the Appellant. Today, also no one has appeared on behalf of the Appellant.

The matter is dismissed for non-prosecution."

4. The Appellant herein filed Recall Application no. 59/2023 on 11.10.2023

seeking recall of order of dated 11.09.2023. The said recall application was

dismissed vide order dated 30.10.2023. The said order is reproduced bellow for

reference:

"This application has been filed seeking restoration (sic) of the order dated 11.09.2023 by which the petition was dismissed for non- prosecution.

We are not satisfied with the reasons given by the Applicant for restoring the main matter.

Therefore, RA-59/2023 dismissed."

5. The Appellant had filed an affidavit dated 17.04.2024 before this Tribunal

submitting that he was not able to represent before the Ld. NCLT due to lapses

on the part of his Counsel. The Appellant submitted that he may not be punished

for act of his Counsel. The Appellant further submitted that the Company was

deriving revenue from operations in the Financial Year 2016-17 of Rs. 34 lakhs,

in Financial Year 2017-18 of Rs. 40 lakhs, in Financial Year 2017-18 of Rs. 49

lakhs and in Financial Year 2018-19 of Rs. 45 lakhs. The Appellant submitted

that it was a small-scale company and had made reasonable profits in the period

Company Appeal (AT) Nos. 35 and 36 of 2024 Page 3 of 4 leading to strike off of the Company. The relevant extracts of annual return and

balance sheet submitted by the Appellant for the financial year 2016-17 to 2018-

19 are reproduced below:

Particulars FY- 2016-17 FY- 2017-18 FY- 2017-18 FY- 2018-19 (in Rs.) (in Rs.) (in Rs.) (in Rs.) Revenue 34,34,353.45/- 40,17,589/- 49,26,741.38/- 45,01,513/- from Operation Profit/Loss 1,36,453.62/- 1,57,180/- 1,77,491/- 1,30,742/- before tax Profit/Loss 94,289.62/- 1,10,282/- 1,35031/- 99,259/- after tax Reserve and 94,290/- 2,04,572/- 3,39,603/- 4,38,862/- surplus

6. After hearing the Learned Counsel for the Appellant and going through

records, we feel this is a fit case for remanding back to Ld. NCLT for

consideration of the Appeal on merits for restoration of the Company. We

restrain from giving any comments on the merits of the case. The Ld. NCLT may

expeditiously decide the appeal of the Appellant. The Appellant shall join the

proceedings and shall not take any adjournment.

With these directions, the Company Appeal (AT) No. 35 of 2024 and

Company Appeal (AT) 36 of 2024 are allowed. All related IAs, if any, are closed.

No order as to costs.

[Justice Yogesh Khanna] Member (Judicial)

[Ajai Das Mehrotra] Member (Technical)

Ram N./Manu.

Company Appeal (AT) Nos. 35 and 36 of 2024 Page 4 of 4