Dashmesh Impex Private Limited & Anr vs Registrar Of Companies Nct Of Delhi And ...

[Arising out of order dated 10.08.2021 passed by the National Company Law Tribunal (Court-V, New Delhi) in Appeal 171/252/ND/2020]

IN THE MATTER OF: Dashmesh Impex Private Limited (Through, Directors) CIN: U51909DL2006PTC150963 Registered Office: 2/32 Kalkaji Extension New Delhi-110019. 1. Kamal Kishore S/o Hemchand Agarwal, R/o A-161 Vivek Vihar, Phase-2, New Delhi-110032 ...... Appellant No. 1. 2. Lokesh Tayal S/o Trilok Chand Tayal, R/o A-11, Vivek Vihar, Phase-2, Jhilmil, New Delhi-110095. ....... Appellant No. 2.

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

Present: For Appellant: Mr. Awnish Kumar, Advocate. For Respondent:- Ms. Mitika Raja, AROC. 2

JUDGMENT

(06th December, 2022)

Justice Anant Bijay Singh;

The present Appeal under Section 421(1) of the Companies Act, 2013,

has been filed by the Appellant being aggrieved and dissatisfied by the order

dated 10.08.2021 passed by the National Company Law Tribunal (Court-V,

New Delhi) in Appeal 171/252/ND/2020 whereby and whereunder appeal filed

by the Directors of the Company 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 14.07.2006 as a private company limited by shares and the same is

registered with the office of Registrar of Companies, NCT of Delhi & Haryana.

The Company is carrying on business of development of software and main

objects of the Company to carry on the business of manufacturing trading

import export of garments fabrics and related items and to carry on the

business of embroidery & designing on garments, fabrics and related items etc.

ii) The Appellant Company is a closely held company and there are 2

shareholders and 6 directors in the Appellant Company which are hereunder:

List of Directors

Sr. Name of Directors Date of DIN No. appointment

Company Appeal (AT) No. 116 of 2021 3

1 Kamal Kishore 09/03/2017 00408530 2 Bhagwant Singh Kalra 14/07/2006 00726850 3 Gunwanti Jain 07/07/2010 00764239 4 Lokesh Tayal 09/03/2017 01071754 5 Ashok Mishri Mal Jain 07/07/2010 01133869 6 Satwant Kalra 14/07/2006 01331672

List of Shareholders

Sr. Name of Shareholders No. of equity Percentage of No shares of 10/- shareholding each.

1 Bhagwant Singh Kalra 5,000 50% 2 Satwant Kalra 5,000 50% Total 10,000 100%

iii) The Authorized Share Capital of the Appellant Company is Rs.

1,00,000/- Consist of 10,000 Equity Shares of Rs. 10/- which issued,

Subscribed & Paid up share capital of the struck off Company is Rs.

1,00,000/- Consist of 10,000 Equity Share of Rs. 10/- each. The Appellant

Company has filed its financial statements with the Respondent till the year

ended on 31.03.2009. The Appellant Company commenced its business and

operations since the date of incorporation of the Company and the Company is

continuing to carry out its business and operation till date. The Company is

regularly convening its annual general meetings and approving and adopting

the audited balance sheets and complying with other requirements of the

Companies Act, 2013 and rules made thereunder.

Company Appeal (AT) No. 116 of 2021 4

iv) Mr. Kamal Kishore & Mr. Lokesh Tyal has been appointed as the

directors in the above said company in the year 2017 for managing the affairs

of the company. The appointment of the above said director was duly approved

by the Respondent. The company has taken a land from Rajasthan State

Industrial Development and Investment Corporation Limited ("the Corporation")

for the purpose of carrying on business and operation. The said Corporation

vide letter dated 20.11.2017 has admitted that the appellant company has

started the production on the above said plot as on 21.12.2013 and asking for

the late starting fees. The company is having Assets and Liabilities. The copy of

balance sheet were duly laid and adopted in the respective Annual General

Meeting of the Company under relevant provisions of Act. The company is

having tangible fixed assets that comprises of land amounting to Rs.

12,05,031.55. The directors of the company regularly paying the dues of the

Corporation and has paid his dues of Rs. 3,65,923/- on 12.01.2021 to the

Corporation. The company has also filed income tax returns regularly.

v) Further case is that the Respondent Registrar of Companies without

giving any prior notice to the Appellant Company ordered the publication of

information regarding the removal of name of the Appellant Company from the

register of Companies w.e.f. 07th June 2017 in the Official Gazette dated

30.06.2017. Whereas, the name of the Company was still retained in the

records by the office of Respondent even after publication of the said

notification and the same is evident from the fact that the Appellant Company

Company Appeal (AT) No. 116 of 2021 5

had appointed the two directors after filing of the relevant E-form DIR-12 and

the same was approved by the Respondent.

vi) Further case is that being aggrieved by the notice of the Respondent of

striking off, the Appellant Company approached the Tribunal under Section

252 of the Companies Act, 2013 for revival of the Appellant Company, wherein

the Respondent filed its reply in the matter and did not object to revival of the

Appellant Company, thereafter, hearing both the parties, the Tribunal passed

the impugned order.

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 the Respondent-RoC has not raised any ground

whatsoever for rejecting the appeal for revival of the Appellant Company and

has simply shifted the burden on the Appellant Company to prove that the

Appellant Company was carrying on business and operations. Therefore, in the

absence of any objection from the Respondent there were no grounds with the

Tribunal to reject the Appeal of the Appellant Company. The Tribunal also

failed to consider that the company has property in their name which is duly

reflected in the balance sheet also, the income tax returns filed up to 2009-

2010 which shows that the Appellant Company was carrying on its operations

before the date of striking off the name of the Company i.e. before 30.06.2017.

4. On the other hand, the Respondent during the course of argument and

in his reply submitted that the Appellant Company has filed its financial

statements till financial year 31.03.2009 due to which the Respondent had

Company Appeal (AT) No. 116 of 2021 6

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 Companies Act, 2013. The appellant company has been issued STK-1 in

March, 2017. Further, in terms of Section 248(4) of the Act, public notice in

form STK-5 were issued to the appellant company by making publication in

official gazette on 28.04.2017 and these notices have also been placed on the

website of Ministry of Corporate Affairs. In pursuant to Sub-section (5) of

Section 248 of the Companies Act, 2013 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/directions, Dissolution in from STK-7 having effect

from 30.06.2017 was published on the website of Ministry of Corporate Affairs

on 08.07.2017.

5. After hearing the parties, going through the pleadings made on behalf of

the parties and in view of the fact that the financial statements 2016-2017,

2017-2018, 2018-2019, 2019-2020 and Income Tax Return 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 NCLT, New Delhi as well as RoC, NCT Delhi

& Haryana is not sustainable in law.

Company Appeal (AT) No. 116 of 2021 7

6. In view of the aforenoted, we set aside the impugned order dated

10.08.2021 passed by the National Company Law Tribunal (Court-V, New

Delhi) in Appeal 171/252/ND/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, NCT Delhi & Haryana 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

filing of statutory returns/documents against the Company and

Directors.

The instant Appeal is allowed to the above extent.

7. 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 (Court-V, New Delhi), forthwith.

[Justice Anant Bijay Singh] Member (Judicial)

[Ms. Shreesha Merla] Member (Technical) New Delhi 06th December, 2022 R. Nath.

Company Appeal (AT) No. 116 of 2021