M/S Lico Food Products Private Limited & ... vs The Registrar Of Companies New Delhi & ...

[Arising out of order dated 08.10.2021 passed by the National Company Law Tribunal (Court-V, New Delhi) in Appeal 109/252/ND/2021]

IN THE MATTER OF: 1. Lico Food Products Pvt. Ltd. Reg. Off.: E-11, First and Second Floor Tara Apartment, Alaknanda, New Delhi-110019. ....... Appellant No. 1.

2. Ms. Shaista Khan S-480, Flat No. 2, G.F. Road 410/484, Greater Kailash 2, Opp-566, New Delhi-110048 ....... Appellant No. 2.

Versus 1. The Registrar of Companies New Delhi and Haryana 4th Floor, IFCI Tower, 61, Nehru Place, New Delhi-110019. ....... Respondent No. 1. 2. The Commissioner of Income Tax C.R. Building, I.P. Estate, New Delhi ....... Respondent No. 2.

Present: For Appellant: Mr. Yogesh Swaroop, Mr. Alok Kr. Palai, Advocates. For Respondent:- Ms. Mitika Raja, AROC. 2

JUDGMENT

(16th February, 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

08.10.2021 passed by the National Company Law Tribunal (Court-V, New Delhi)

in Appeal 109/252/ND/2021 whereby and whereunder appeal filed by the

Appellant No. 2 being Director of 'M/s Lico Food Products Pvt. Ltd.' / 'Appellant

No. 1 herein' for restoration of the name of the Company in the Register

maintained by the Registrar of Companies (RoC), NCT of Delhi and Haryana was

dismissed by the Tribunal.

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

i) M/s Lico Food Products Private Limited (Struck Off) (hereinafter referred

to as the 'Company') was incorporated on 23.12.1987 as a Private Limited

Company, limited by shares under the provisions Companies Act, 1956 in the

name of M/s Lico Food Products Private Limited (Struck Off). The name of the

company has been "struck off" by the Registrar of Companies from 23rd June,

2007.

ii) The company was carrying business at the time of striking off the name of

the company and its turnover in the Financial Year 2004-05 was INR 97,214/-,

2005-06 was INR 1,04,664/- and 2006-07 was INR 1,11,514/- (audit report of

financial statement are attached as proof and company intends to further carry-

Company Appeal (AT) No. 74 of 2022 3

on business activities. The company has property/assets in its book INR

10,48,230/- as per the financial statements.

iii) The authorized share capital of the company is Rs. 6,57,000/- divided into

6570/- equity shares of Rs. 100/- each. The issued, subscribed and paid-up

equity share capital of the company is Rs. 6,57,000/- divided into 6570/- equity

shares of Rs. 100/- each. The Financial Statement for the Financial Year of 2004-

05, 2005-06, 2006-07, 2007-08, 2008-09, 2009-10, 2010-11, 2011-12, 2012-

13, 2013-14, 2014-15, 2015-16, 2016-17 and 2017-18 are evident of the

financial position of the company.

iv) The Appellants checked Ministry of Corporate Affairs Portal (MCA21

Portal) for electronic filing of statutory documents. The Appellants came to learn

that the status of the Company was showing "Strike Off". Thereafter, the

representative of the company had engaged a Company Secretary in whole time

practice to advice for the aforesaid matter. The Company Secretary in hole time

practice informed that the name of the said company has already been struck

off from the file/register maintained by the Registrar of Companies, New Delhi

and Haryana. However, the Company Secretary handed over a copy of the Notice

under Section 248 (5) of the Companies Act, 2013 to the representative of the

said company.

v) There were some internal disputes among the shareholders and

management of the company. However, after such disputes were resolved the

Company took steps to file the same with the Respondent No. 1 in March, 2018

but the Respondent No. 1 refused to accept it on the ground that the name of

Company Appeal (AT) No. 74 of 2022 4

the Company has been "Struck Off" from the Registrar. The Appellant company

intends to carry on its business and operation and has not made any application

within such period for obtaining the status of a dormant company under Section

455 of the Act.

vi) Thereafter, being aggrieved by the notice of the Respondent No. 1 of

"Striking Off", the Appellant Company approached the Tribunal under Section

252 of the Companies Act, 2013 for revival of the Appellant Company and after

hearing both the parties, the Tribunal passed the order impugned which led to

filing of this Appeal.

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

grounds mentioned in the memo of appeal, submitted that the Tribunal while

passing the impugned order has erred in law and fact by not considering that

the Appellant Company was shown as "Strike Off" without following due

procedure. Further, the Tribunal did not appreciate that the Appellant herein

after resolving all internal disputes among the shareholders and management of

the company, approached the Respondent No. 1 to restore the status of the

Company of the Appellant but the Respondent No. 1 refused to accept it on the

ground that the name of the company has been struck off from the register.

4. It is further submitted that the without restoring the name of the Appellant

company in the register of the Registrar of Companies, the Appellant company

is losing the legal status/entity of the company to run or deal day to day

operations/business activities. The delay in filing of Balance Sheets and Annual

Returns were unintentional and without any willful or deliberate action bonafide

Company Appeal (AT) No. 74 of 2022 5

to the reasons of. The Appellant company was unaware of the notification

regarding striking off the name of the company. The Appellant came to know

about the same only when the representative of the company want to file the

statutory documents as per the requirements of the Act and immediately the

representative of the Appellant company visited to the Registrar of Companies

and requested to change the status of the company from "Strike Off" to "Active"

so that the statutory compliances can be made as per the requirement of the Act.

But the Respondent No. 1 expressed his helplessness to make any correction or

modification in the master data and in accepting the Audited Accounts and

Annual Returns as the name of the Company has already been struck off from

its record. Thus, striking of process from the Respondent No. 1 is against the

principle of natural justice.

5. It is further submitted that the Appellant company will suffer irreparable

loss, injury, damage and will be greatly prejudiced and the livelihood of all the

Directors, Shareholders, Creditors and the employee of the company would be

at stake in case of non-restoration of the status of the Appellant company.

In view of the above submissions, the impugned order fit to be set aside

and the instant Appeal may be allowed.

6. On the other hand, the Respondent No. 1/Registrar of Companies in his

reply stated that as per available records on MCA (back portal), no

Signatory/Directors of the Company were found. Since launching of MCA-21

portal in 2006, no records of the Annual returns & Balance Sheet submitted by

this Company to this office as per the records exist. Moreover, no subsequent

Company Appeal (AT) No. 74 of 2022 6

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

a "Dormant Company" under Section 455 of the Companies Act, 1956. Due to

pending audited financials this office had reasonable cause to believe that the

company was not in operation and therefore, the name of the company was

considered for striking off from the Register of Companies. The name of the

company was struck off as per the provision of Section 560(5) of the Companies

Act, 1956 dated 31.05.2007. However, the company has submitted pending

audited financials with application which are hereunder:

Sr. Particulars Remarks No. 1. Revenue from As per Profit & Loss A/c attached.

Operations. F.Y.2002-2003 Rs. 34,570.00/-

F.Y.2003-2004 Rs. 28,000.00/-

F.Y.2004-2005 Rs. 30,000.00/-

F.Y.2005-2006 Rs. 34,550.00/-

F.Y.2006-2007 Rs. 33,500.00/-

F.Y.2007-2008 Rs. 31,500.00/-

2. Audited Financial Submitted with petition for the F.Y. 2003-04

Statements to 2015-16.

7. It is further stated that the Office of the Registrar of Companies has no

objection in the restoration of the Company, if this Tribunal choose to consider

the application for restoration the name of the company, this Tribunal may

please issue directions to the Appellant company to file all the pending Annual Company Appeal (AT) No. 74 of 2022 7

Returns and Balance Sheets of the subject company with the Registrar of

Companies within such time as specified by this Tribunal.

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

the parties and in view of the fact that the Financial Statements for the Financial

Years of 2004-05, 2005-06, 2006-07, 2007-08, 2008-09, 2009-10, 2010-11,

2011-12, 2012-13, 2013-14, 2014-15, 2015-16, 2016-17 & 2017-18 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 National Company Law Tribunal (Court-V, New Delhi) as well as Registrar

of Companies, NCT of Delhi & Haryana is not sustainable in law.

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

08.10.2021 passed by the National Company Law Tribunal (Court-V, New Delhi)

in Appeal 109/252/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 costs 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 Balances Sheets. The Company shall also pay

requisite charges/fee as well as late fee/charges as applicable.

Company Appeal (AT) No. 74 of 2022 8

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.

10. 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)

[Mr. Kanthi Narahari] Member (Technical)

New Delhi 16th February, 2023 R. Nath.

Company Appeal (AT) No. 74 of 2022