Himalayan Organic Food Specialties ... vs Registrar Of Companies Nct Of Delhi & ...

[Arising out of order dated 26.07.2021 passed by the National Company Law Tribunal, New Delhi Bench (Court-II) in Appeal No. 51/252(ND)/2021]

IN THE MATTER OF: 1. Himalayan Organic Food Specialties Pvt. Ltd. Through its Authorized Representative A-19 Gharonda Apartment Shrestha Vihar, East Delhi-110092 ....... Appellant No. 1. 2. Mr. Anuj Tandon S/O Rakesh Chander Tandon, A-19, Gharonda Apartment Shrestha Vihar, East Delhi-110092. ....... Appellant No. 2. Versus Registrar of Companies, NCT of Delhi & Haryana, 4th Floor, ICI Tower 61, Nehru Place New Delhi-110019. ....... Respondent. Present: For Appellant: Mr. Manoj Kumar Garg, Advocate. For Respondent:- Ms. Mitika Raja, AROC.

JUDGMENT

(31st July, 2023)

Justice Anant Bijay Singh;

The present Appeal under Section 421 of the Companies Act, 2013, has

been filed by the Appellants being aggrieved and dissatisfied by the order dated 2

26.07.2021 passed by the National Company Law Tribunal, New Delhi Bench

(Court-II) in Appeal No. 51/252(ND)/2021 whereby and whereunder Appeal filed

by the Appellants for restoration of the name of the Appellant Company in the

register maintained by the Registrar of Companies, NCT of Delhi and Haryana

(the 'ROC'), was dismissed by the Tribunal.

2. The facts giving rise to this Appeal are as follows:

i) The Appellant Company was incorporated on 18.04.2011 under the

provision of Companies Act, 1956 with the Registrar of Companies, NCT of Delhi

and Haryana and its registered office is situated at New Delhi-110092. The

Appellant No. 1 company is in the business of trading of Organic Food and other

allied Products and other hospitality related services and also built its reputation

and Goodwill over the years and is known for its name in the market. The

Appellant Company has preferred the present Appeal, through its Authorized

Representative/Authorized Signatory namely Anuj Tandon who is duly

authorized vide its Board Resolution to institute, file, verify and proceed with the

present Appeal against the Respondent. The Appeal has been filed by the

Appellant No. 1 Company whose name has been struck off and certificate of

Incorporation has been cancelled. The other Appellant is the members of the

Appellant No. 1 Company at the time of striking off the name of the Appellant

No. 1 company from the Register of Members by the Respondent.

ii) The Respondent has struck off/remove the name of the Appellant company

from the Register of Members and cancelled the Certificate of Incorporation in

Company Appeal (AT) No. 75 of 2022 3

complete negligence of the statutory requirement which is well enumerated

under Section 248 Sub-section (1), (2) & (3) of Companies Act, 2013.

iii) The Appellants did not receive any individual notices from the Respondent

under Section 248 of Companies Act, 2013. The Appellant company is having its

registered Office at New Delhi-110092 and in compliance of the aforesaid

statutory provisions, the Respondent/Registrar was required to send the notices,

at the Registered office of the Company. Pertinent to mention that the Appellant

company had not shifted its registered office at any other place since

incorporation. The Respondent/RoC had not passed any order for its satisfaction

as enumerated under Section (6) of Section 248 of the Companies Act.

iv) The Appellant No. 1 company was a going concern at the time of striking

off its name from the Register of members by the RoC/Respondent and to

substantiate, the Appellant had annexed imperative documents such as Audited

Balance Sheet, Financial Statements, GST Certificate, Independent Auditor

Report and Bank Account Statements in the Appeal filed before the NCLT by the

present Appellants under Section 252 of the Companies Act, pertaining to its

functioning during the time when RoC/Respondent in complete violation of the

Statutory provisions under Companies Act, 2013 had strike off its name from

the Register of Companies.

v) The operations of the Appellant company are well enumerated. As per

Audited Balance Sheet as on 31st March, 2018 which are annexed as Annexure-

2 of the Appeal Paper Book. In view of the aforesaid figures, it is imperative to

note that the Appellant company despite of having income from operations in the

Company Appeal (AT) No. 75 of 2022 4

year 2017 and 2018 and incurred other expenses was being struck off by the

RoC/Respondent upon vague, false allegations of being inactive and that too

without any corroboration. Further, as per bank Account Statement for the

Financial years 2017-18 as especially for the month of June, 2017 i.e. at the

time of Striking off the name of the Appellant company by the RoC/Respondent

which are annexed as Annexure-3 of the Appeal Paper Book. In view of the

aforesaid transactions, it is pertinent to note that the Appellant Company was

actively involved in business transactions at the time of Striking off the name of

the Appellant Company by the RoC/Respondent vide its Circular dated

30.06.2017.

vi) Moreover, the Respondent/RoC had to mandatorily comply with the

aforesaid statutory provisions before striking off the name of the Appellant

Company. The Registrar/Respondent published the list for the companies whose

name were removed from the Register of Members vide its circular/letter dated

30.06.2017. The act of Registrar of Companies/Respondent is per se bad and

illegal. The ROC/Respondent had not followed the procedure as prescribed by

Section 248 of the Companies Act, 2013.

vii) The Appellant No. 1 company was preparing all its returns etc. and was

relying on the professional to file the same. To the uttar shock to the Appellants

when it was apprised to them that the name of Appellant No. 1 Company was

struck off and removed from the Register of Companies by the Respondent. The

Appellant No. 1 company was maintaining its bank accounts with Yes Bank and

Company Appeal (AT) No. 75 of 2022 5

State Bank of India for more than Five Years and the transaction in it had been

done till the year 2017.

viii) The Appellants filed Appeal before the NCLT against the order of striking

off the name of the Appellant No. 1 company from the register maintained by the

RoC/Respondent and after hearing the parties the NCLT dismissed the Appeal

filed by the Appellant for restoration of the name of the Appellant Company in

the register maintained by the Registrar of Companies, NCT of Delhi and

Haryana which led to filing of this Appeal.

3. The Learned Counsel for the Appellant during the course of argument and

grounds taken in his memo of Appeal submitted that the order impugned dated

26.07.2021 passed by the NCLT is bad in law as the said order has been passed

based on incomplete disclosure of complete facts of the case without providing

an opportunity to the appellants to clarify and the same is in violation of the

principles of natural justice. Further, the Tribunal has erred in passing of the

impugned order dated 26.07.2021 as the Respondent has got struck off/removed

the name of the Appellant Company from the Register of Members and cancelled

the Certificate of Incorporation in complete negligence of the statutory

requirement which is well enumerated under Section 248, Sub-section (1), (2),

(3) & (6) of the Companies Act, 2013.

4. It is further submitted that the Tribunal had overlooked the fact that the

appellant company was actively participating in business transaction at the time

of striking of its name from the Register of Companies by the Respondent/RoC

as evident from the Audited Balance Sheet as of 31.03.2018 and Bank Account

Company Appeal (AT) No. 75 of 2022 6

Statement for the financial years 2017-18. Further, the Tribunal had overlooked

the fact that the RoC/Respondent had not complied with the statutory provisions

of Section 248(6) of the Act which says that the Registrar, before passing an order

under sub-section (5), shall satisfy himself that sufficient provision has been

made for the realisation of all amount due to the company and for the payment

or discharge of its liabilities and obligations by the company within a reasonable

time and, if necessary, obtain necessary undertakings from the managing

director, director or other persons in charge of the management of the company.

5. It is further submitted that the RoC/Respondent in complete violation of

Section 248(6) of the Companies Act, 2013 published notice dated 30.06.2017

as per section 248(5) of the Companies Act, 2013.

6. It is further submitted that the Tribunal in complete disregard to the

aforesaid statutory provisions wherein the Respondent/RoC was required to

send a Notice to the Appellant and allow them to give their response in the

stipulated time period, had vide order dated 26.07.2021 declined to interfere

with the striking off action taken by the RoC/Respondent against the Appellant

Company under Section 248(5) of the Act. The Respondent had no complied with

Section 248(1)(e) of the Act in order to issue notice to the company and all the

directors of the company, of his intention to remove the name of the company

from the register of companies and requesting them to send their representations

along with copies of the relevant documents, if any, within a period of thirty days

from the date of the notice.

Company Appeal (AT) No. 75 of 2022 7

7. It is further submitted that the income of the Appellant Company from

operations i.e. Rs. 62,33,226.54/- is evident in the Audited Financial Statement

for the year ended 31.03.2018 and the same was of Rs. 5,77,334.92/- in the

Financial Statement for the year ended 31.03.2018.

8. It is further submitted that the Appellants undertakes to file the imperative

documents such as Annual Returns and duly audited Financial Reports with the

MCA along with the Additional fee, if any, on its revival. If the name of the

Appellant No. 1 company is not revived then the same would cause prejudice to

the Appellant and shall suffer irreparable loss in terms of the Appellant No. 1

company goodwill earned.

Based on above submissions, the impugned order is fit to be set aside and

the instant Appeal be allowed.

9. On the other hand, the Respondent / Registrar of Companies during the

course of argument and in his reply, it is stated that the Appellant company has

not filed any annual Returns and Balance Sheet. Moreover, no subsequent

documents had been filed by the company with this office to obtain the status of

a "Dormant Company" under Section 455 of the Act. Hence, that office had

reasonable cause to believe that the company was not in operation, and

therefore, the name of company was considered for striking off from the Register

of Companies.

10. It is further stated that this office of the RoC issued the notice in the form

of STK-1 in the month of March, 2017 intimating the company and the directors

of the company about the aforesaid defaults, providing them a fair opportunity

Company Appeal (AT) No. 75 of 2022 8

to respond. Subsequently, this office also issued public notice for the same in

the form of STK-5 dated 24.08.2017 and public notice published in Hindustan

Times newspaper on 27.04.2017. Thereafter, the name of the company was

struck off as per the provision of Section 248(1)(c) of the Act read with Rule 9 of

the Companies (Removal of Names of Companies from the Register of Companies)

Rules, 2016 vide Notice in the form of STK-7 dated 07.06.2017.

11. As per the information provided by the Appellants with application, it is

observed as under:

Sr No. Particulars Remarks 1. Revenue from Operations As per the profit & Loss A/c submitted with the Petition: F.Y 2016-17 showing Revenue as Rs. 577334/- F.Y. 2017-18 showing Revenue as Rs. 6281205.54/- 2. Audited Financial Statement Submitted with the Petition for the financial years 2017-18 only. 3. Bank Statement Submitted with petition from 03/04/2017 to 24/01/2018

12. It is further stated that in view of foregoing facts and circumstances of the

case, if this Tribunal consider the application for restoration of name of the

company, this Tribunal may issue directions to the Appellants to file all the

pending Annual Returns and Balance Sheets of the subject company with the

Registrar of Companies within such time as specified by this Tribunal. Further,

this Tribunal may please award cost in favour of the Respondent (Registrar of

Company Appeal (AT) No. 75 of 2022 9

Companies) as the Appellants failed to file its statutory returns with the

Respondent under the Companies Act, 2013.

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

the parties and in view of the fact that the Audited Balance Sheet as on 31st

March, 2018 and Bank Account Statement for the Financial Years 2017-18 and

especially for the month of June, 2017 show that the Appellant No. 1 Company

was actively involved in business transactions at the time of Striking off the name

of the Appellant No. 1 Company by the Respondent vide its Circular dated

30.06.2017. Therefore, it cannot be said that the Appellant No. 1 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 (Court-

II) as well as Registrar of Companies, NCT of Delhi & Haryana is not sustainable

in law.

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

26.07.2021 passed by the National Company Law Tribunal, New Delhi Bench

(Court-II) in Appeal No. 51/252(ND)/2021. The name of the Appellant Company

be restored to the Register of Companies subject to the following compliances:

i) Appellant Company shall pay cost of Rs. 1,00,000/- (Rupees One

Lakh) to the Registrar of Companies, NCT of 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 Registrar of Companies, the Company shall file

all their Annual Returns and Balance Sheets. The Company shall

Company Appeal (AT) No. 75 of 2022 10

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

applicable.

iii) Inspite of present orders, Registrar of Companies 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. I.A, if any, stands

disposed of.

15. 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, New

Delhi Bench (Court-II), forthwith.

[Justice Anant Bijay Singh] Member (Judicial)

[Naresh Salecha] Member (Technical)

New Delhi 31st July, 2023 R. Nath.

Company Appeal (AT) No. 75 of 2022