Dhanpat Raj Sethia vs Asheerbad Construction Co Pvt Ltd

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NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH NEW DELHI COMPANY APPEAL (AT) NO.209 of 2024 In the matter of: Dhanpat Raj Sethia Secretary of Dwarka Enclave Owners Society Appellant Vs Asheerbad Constructions Co Pvt Ltd & Ors Respondent For Appellant: Mr Suraj Sharma, Advocate. For Respondent:Mr Durga Dutta, Advocate for ROC Ms Suman Das, Mr Vinay Thakur, Advocates for R1 to R4. ORDER

HYBRID MODE 12.11.2025: This appeal is filed against an impugned order dated 16.05.2024

passed by the Ld. NCLT Guwahati in CP No.2/GB/2023 in an application filed

under Section 252(3) of Companies Act, 2013 seeking restoration of the name of

the struck off company M/s Asheerbad Constructions Co Pvt Ltd in the register

of companies, as maintained in the office of the Registrar of Companies.

Admittedly the Respondent No.1 status was active till it was served notice dated

09.06.2017.

2. Admittedly, Respondent No.1 company was struck off from the register of

companies by Respondent No.5, pursuant to Section 248(1) and (5) of the

Companies Act, 2013 for non-filing of financial statements and annual returns

from the financial year 2002-03 onwards. It is the main contention of the learned 2

counsel of the appellant there were two directors of the company, but out of

which one unfortunately expired and after the demise of the director namely Mr

Rabindranath Sarma on 02.06.2021 the Respondent No.1 company was

managed by Ms Ratna Sarma, the another director and with her two sons being

Respondents No.3 and 4, though denied by them and the respondents submit

there is no one to look after the company.

3. The main contention of the appellant is the company needs to be restored

as it had allotted residential and commercial space to the appellants and

registration of sale deeds for sale of such flats and commercial space(s) in favour

of buyer need to be executed only by the company. Earlier it could not be

executed due to a stay order dated 22.08.2023 issued by Guwahati High Court.

However, the said Writ Petition was disposed of vide order dated 27.10.2022, but

in appeal, the Division Bench of the High Court in WA/53/2023 vide order dated

17.02.2023 had granted status quo order.

4. The moot question here is if the name of Respondent No.1 company is not

restored to the register of companies, then who shall execute the sale deeds in

favour of home buyers as well as commercial space buyers, allotted by

Respondent No.1 company. Hence in these peculiar circumstances it is

necessary to restore the name of the company to the register of ROC, so that if

an order is passed in favour of the appellants in pending litigation before the

High Court, the company may be able to execute the sale deeds as above. The

fact that there is only one director, we leave it open for the shareholders to 3

appoint another one and in their failure to do so, the ROC may take steps to do

the needful. We cannot leave the purchasers in lurch and thus the restoration

of the company is just and essential and in public interest.

5. For the reasons aforesaid we find it just and equitable to restore the name

of the Respondent No.1 company to the record of ROC and thus we set aside the

impugned order dated 16.05.2024 passed by the Ld. NCLT and direct the ROC

concerned to restore the name of the company to the Register of Companies. The

Respondent No.1 company shall file all its annual returns and balances sheets

within four weeks and shall also pay all requisite charges/fee, as applicable.

6. With the above directions, the appeal is disposed of.

7. All pending applications are also closed.

(Justice Yogesh Khanna) Member (Judicial)

(Mr. Ajai Das Mehrotra) Member (Technical) Bm/rr