Jaishree Dealcomm Pvt. Ltd vs Roc, West Bengal

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NATIONAL COMPANY LAW APPELLATE TRIBUNAL NEW DELHI COMPANY APPEAL (AT) NO.22 OF 2019 (Arising out of impugned order dated 29.11.2018 passed by the National Company Law Tribunal, Kolkata Bench, Kolkata in Company Petition(Appeal) No.717/KB/2018) In the matter of: 1. Jaishree Dealcomm Pvt Ltd, Mercantile Building, 9/12, Lal Bazar Street, A-Block, 1st floor, Kolkata-700001

2. Ushmesh and Akhilesh Enterprises Pvt Ltd, Kapda Bazar Jalna 431203

3. Abhijeet Jagannath Bangad Modi Khana Jalna 431203

4. Vinayak Kangaonkar Bhavsar Galli College Road, Jalna 431203 Appellants

Vs ROC West Bengal Nizam Palace 2nd MSO Building, 2nd floor, 234/4 AJC Bose Road, Kolkata 700020 Respondents:

Present: Mr. Abhay K. Das, Advocate for appellant Mr Vikram Singh, Dy. ROC, WB.

JUDGEMENT

(29th November, 2019)

JUSTICE JARAT KUMAR JAIN, MEMBER (JUDICIAL) The appellants have filed this appeal under Section 421 of Companies

Act, 2013 against the order dated 29.11.2018 passed by the National

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Company Law tribunal, Kolkata Bench, Kolkata whereby dismissed the

appeal and affirmed the order of striking of the name of the appellant company

from Register of Companies, West Bengal.

2. Appellant No.1, Jaishree Dealcomm Pvt Ltd, is a company incorporated

under the Companies Act, 1956 and having it registered office at Mercantile

Building, 9/2, Lal Bazar Street, A Block, 1st floor, Kolkata. Appellant No.2 is

a holding company of Appellant No.1. Appellants No.3 and 4 are directors of

Appellant No.1 company. Appellants were served notice under Section

248(1)(c) of the Companies Act, 2013 on 22.3.2017. Thereafter a public notice

was issued on 7.4.2017 and on 9.6.2017 the company's name was struck off

from the register of companies.

3. The order was challenged in CP(Appeal) No.717/KB/2018 before NCLT,

Kolkata. However, by the impugned order dated 29.11.2018 NCLT has

dismissed the appeal on the ground of the maintainability that under Section

252(3) of the Companies Act, 2013, a company, or any member or creditor or

workman can file application for restoration of name of the company. NCLT

has also observed that as per Section 164(2)(a) of the Companies Act, 2013,

appellants No.3 and 4, directors being disqualified cannot maintain the

appeal. Being aggrieved the appellants have filed the present appeal.

4. Learned counsel for the appellant submits that the appellant No.2,

Ushmesh and Akhilesh Enterprises Pvt Ltd company holds 113400 equity

shares of the Appellant No.1 company and Dinesh Kanti Lal Rathi being a

director of appellant No.2 company signed the memo of appeal filed before the

NCLT Kolkata as well as before this Tribunal. Appellant No.2 company is a

shareholder of the appellant No.1 company and in support a copy of the share

Company Appeal (AT) No.22 of 2019 3

certificate and affidavit of Dinesh Kanti Lal Rathi are annexed with Memo of

Appeal. Dinesh Kanti Lal Rathi being the director of appellant No.2 is

competent to maintain the appeal.

5. Learned counsel for the appellants further submits that the appellant

No.1 was regularly carrying on business as stated in the main object clause

of Memorandum of Association of the company and was regularly filing

income tax returns with the Income Tax Department. However, inadvertently

the company failed to file its audited financial statement and annual returns

since the financial year 2013-14 onwards which are annexed with the Memo

of Appeal. From the Balance Sheets it is apparent that the Appellant No.1 is

carrying on business. Learned ROC has not complied the proper procedure

and has not served the notice with the appellant No.3 and 4, hence the order

of ROC is liable to be quashed and the name of the company be restored to

its original number.

6. Learned Dy. ROC, West Bengal submits that it is not pleaded that Mr.

Dinesh Kanti Lal Rathi is director of Appellant No.2 company and he can

maintain the appeal being a director of shareholder company i.e. appellant

No.2. It is also submitted that the appellant company is gross negligent in

not filing the annual returns and financial statements since financial year

2013-14. Thus the order of the NCLT/ROC be upheld.

7. Having heard learned counsel for the parties we have perused the

record.

8. Memo of appeal filed before NCLT (in para 1(b)and (c)) it is pleaded that

the Petitioner No.2 (appellant No.2 herein) is the holding company and

shareholder of petitioner No.1(appellant No.1 herein) and petitioner No.2

Company Appeal (AT) No.22 of 2019 4

holds 113400 equity shares of appellant No.1 company. This fact finds

support from the share certificate (Annexure A-8, Page 149) and annual

return of appellant No.1 company for the period 30.9.2013. Thus the

appellant No.2 company is the shareholder of appellant No.1 company.

Undisputedly Mr. Dinesh Kanti Lal Rathi has signed the memo of appeal being

a director of appellant No.2 company.

9. Appellant No.3 is also shareholder of the company. In support of this

fact they have filed the share certificate (Annexure A-8 Page 149) and annual

returns of appellant No.1 company for the period 30.09.2013. Thus we find

that the appellant No.3 being a shareholder is competent to file the appeal as

per Section 252(3) of the Companies Act, 2013. The findings of NCLT Kolkata

that the appeal is not maintainable is not correct.

10. We have considered the appeal on merit. Undisputedly the appellants

have not filed the annual returns since the financial year 2013-2014 onwards.

The appellant company is regularly carrying on its business, in support filed

the Auditor Reports and financial statement for the year ended 31st March,

2014 to 31st March, 2017 (Annexure A-6 at Page 79 to 146). We have gone

through these reports. It is apparent that the appellant company is carrying

on its business continuously. Therefore, the order of striking of name of the

company from the register of companies is certainly prejudicial to the

shareholders of the company. The order is liable to be set aside and is hereby

set aside.

11. From the above discussions and observations we have come to the

conclusion that it would be just that the name of the company is directed to

be restored. The following orders/directions are passed:-

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(i) Impugned order is quashed and set aside. The name of Appellant

No.1 company shall be restored to the Register of Companies subject to the

following compliances:

(ii) Appellants shall pay costs of Rs.25000/- to the Registrar of

Companies within 30 days.

(iii) Within 30 days' of restoration of the company's name in the register

maintained by the Registrar of Companies, the company will file all their

annual returns and balance sheets due for the period ending 2013-14 to date.

The company will also pay requisite charges/fee as well as late fee/charges

as applicable.

iv) 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 appeal is accordingly allowed.

(Justice Jarat Kumar Jain) Member (Judicial)

(Mr. Balvinder Singh) Member (Technical)

(Dr. Ashok Kumar Mishra) Member (Technical) New Delhi

Bm/

Company Appeal (AT) No.22 of 2019