Deihite Niphko (India) Pvt. Ltd. & Anr vs Registrar Of Companies, Delhi And ...

Deihite Niphko (India) Pvt. Ltd. & Anr. Appellants

Versus

Registrar of Companies, Delhi and Haryana ... Respondent

Present: For Appellant: - Shri Naresh Kumar and Shri Rajan Khanna, Advocates

For Respondent: Shri Nawal Kishore Jha, Senior Panel Counsel for Union of India/ ROC, NCT of Delhi and Haryana

ORDER

19.07.2017 Appellants namely, Deihite Niphko (India) Pvt. Ltd.

and one Mr. Inder Dev Sharma, filed a petition under the erstwhile

provisions of sub-section (6) of Section 560 of the Companies Act, 1956

before the High Court of Delhi. The said petition was subsequently

transferred to the National Company Law Tribunal (hereinafter referred

to as 'Tribunal'), Principal Bench, New Delhi under Section 434(c) of the

Companies Act, 2013. The Principal Bench of the Tribunal by impugned

order dated 1st May, 2017 having rejected the petition, the present appeal

has been preferred.

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2. Learned Tribunal has noticed the stand taken by the respondents, not

denied by the appellants, as quoted below:

"5. The Respondent has filed detailed reply and a

perusal of which discloses that the Petitioner Company

has not filed the statutory documents in the form of

balance sheet and annual accounts made upto

31.3.2006 and as per the relevant provisions of the

Companies Act, 1956 they are liable for

punishment/penalty. It isfurt her stated in the objections

filed by the Respondents that the 1St Petitioner itself had

under the SES, 2003 had opted to have its name struck

offfrom the Register of the Respondents and in pursuant

to the same the name of the First Petitioner was struck

offfrom the Register. A Notification under Section 560(5)

was also issued and published in the Official Gazette of

India on 8.9.2006, as evident byAnnexure-lof the reply.

6. Learned Counsel for the Respondent also strenuously

stated that the First Petitioner had exercised the option

voluntarily to have its name struck offfrom the Register

being maintained by the Respondents and it was not an

act done suo moto by the Respondents. In the above

circumstances the option of sub-Section (6) of Section 560

of the Companies Act, 1956 to have its name restored to

the Register of the Respondents shall not be available to

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-3- it as it has been done on its own volition and in the

circumstances the Judgement of the Hon'ble High Court

of Madras rendered in the case of Dasaprakash Private

Limited v. Registrar of Companies (being in CP No.

31/2012 decided on 3.8.2012 a copy of which was filed

before this Tribunal) will apply."

3. Taking into consideration the stand taken by the

appellants/ petitioners and the submissions as were made on behalf of the

respondents, the Tribunal held as follows:

"7. We have carefully considered the rival submissions

of the parties before us. It is evident from the fact as

narrated above that the First Petitioner Company has on

its own volition submitted an application under the

relevant Scheme of 2003 for having its name struck off

from the Register maintained by the Respondents. Under

similar circumstances the Scheme being of 2011 titled as

Fast Track Exit Scheme, 2011 instead of SES,2003, this

Tribunal after detailed discussions has already held in

the case of Rahul Rice Mills Private Limited v. Registrar

of Companies (CP No. 171/2016 decided on 21.4.2017)

that subsequent petition under Section 560(b) will not be

maintainable."

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4. Learned counsel appearing on behalf of the appellants submitted that

the appellants have recently come to know that the name of the 1St Appellant

Company has been struck-down and that the letter to ROC for withdrawal

of the application made under SES, 2003, which was given in the year 2006,

has not been acted upon and in view of the same, the Board of Directors of

the 1st Appellant Company on 4th July, 2015 has decided to apply for revival

of the Company. However, such submission cannot be accepted in view of

the fact that the 1St Appellant Company itself under Simplified Exit Scheme

(SES), 2003 had opted to have its name struck-off from the register of the

Registrar of Companies (ROC), N.C.T. of Delhi and Haryana. Learned

counsel appearing on behalf of ROC also submits that it was on the

application preferred by the appellants, the name of the Company was

struck-down as back as in 2006, and it was notified in the Official Gazette

on 8th September, 2006. This apart, if the argument of the learned counsel

for the appellants is accepted that the name of the Company was not struck-

down by the ROC, there was no occasion for the appellants to file a petition

under sub-Section (6) of Section 560 of the Companies Act, 1956.

5. We find no merit in this appeal and it is accordingly dismissed.

However, in the facts and circumstances of the case, there shall be no order

as to costs.

[Justice S.J. Mukhopadhaya I Chairperson

[Balvinder Singh I Member (Technical) 7 ng/