Manoj Majumder vs Manoj Maju Registrar Of Companies West ...

[Arising out of order dated 15.10.2019 passed by the National Company Law Tribunal, Kolkata Bench, Kolkata in Appeal No. 729/KB/2019]

IN THE MATTER OF: Manoj Majumder S/o Indra Bhusan Majumder, R/o 198/A, Dinesh Nagar, Mukundapur, Kolkata-700099 ...... Appellant. Versus

1. Registrar of Companies, West Bengal Registered Office at: Nizam Palace, 2nd M.S.O. Building, 2nd Floor, 234/4, A.J.C. Bose Road, Kolkata-700020 Email: roc.kolkata@mca.gov.in ....... Respondent No. 1. 2. MPH Infrastructure Private Limited (presently, struck off by Registrar of Companies, WB) 90, Nabadiganta, P.S.- Purba Jadavpur, Kolkata-700094 Email: mphpvtltd@gmail.com ....... Respondent No. 2. (Proforma Respondent)

Present: For Appellant: Mr. Lzafeer Ahmed, Mr. Sujoy Chatterjee, Mr. Suryaneel Das, Mr. Sarosij Das Gupta, Mr. Rishabh Singhle, Advocates. For Respondent:- Mr. Sagar Mehlawat, Prxy Counsel for Mr. Harish Vaidyanathan (CGSC) for R-1/ROC. 2

JUDGMENT

(16th November, 2022)

Justice Anant Bijay Singh;

The present Appeal under Section 421(1) of the Companies Act, 2013 filed

by the Appellant being aggrieved and dissatisfied by the order dated 15.10.2019

passed by the National Company Law Tribunal, Kolkata Bench, Kolkata in

Appeal No. 729/KB/2019 whereby and whereunder the appeal filed by the

Appellant herein for restoration of the name of the Company in the Register of

Companies, West Bengal was dismissed.

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

i) The Appellant herein is a shareholder of a company being MPH

Infrastructure Pvt. Ltd., a company limited by shares, incorporated under the

provisions of the Companies Act, 1956 having its registered office at Kolkata-

700094. The authorized share capital of the company is Rs. 15,00,000/- only

divided into 1,50,000 equities share of Rs. 10/- each. The issued, subscribed

and paid-up share capital of the company is Rs. 3,00,000/- divided into 30,000

shares of Rs. 10/- each.

ii) further case is that the Memorandum of Association of the company would

reveal that the company has been incorporated to, inter alia, carry on the

business of real estate and development and construction work. The Appellant

herein became aware of the fact that the name of the company was struck off

from the Registrar of companies by the Respondent herein, in the month of

March, 2019, when the Appellant herein went to the office of the Respondent to

enquire about the filing of the balance sheet and annual returns of the said

Company Appeal (AT) No. 234 of 2020 3

company. Being utterly shocked and surprised, the Appellant being a

shareholder of the company had checked the Ministry of Corporate Affairs Portal

(MCA 21 Portal), wherefrom it appeared that the status of the company was

showing "struck off".

iii) Thereafter, brought to the attention of the Appellant that the Respondent

had issued a Public Notice No. ROC/WB/STK/2017/1 dated 07.04.2017 in For

STK-5 and Notice of Striking Off and Dissolution in STK-7 via Notice No.

ROC/WB/STK/2017/2 dated 30.06.2017. The said Notices issued by the

Respondent dated 07.04.2017 and 30.06.2017. Aggrieved by the same, the

Appellant had preferred an Appeal under Section 252(3) of the Companies Act,

2013 being Appeal No. 729/KB/2019, inter alia, seeking resolution of the name

of the company on the Register of Companies maintained by the Registrar of

Companies, West Bengal, praying for direction upon the Respondent to restore

the name of the company and to file and/or register with the Respondent and to

rectify the Master Data by modifying the status from striking off to active. After

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

of this Appeal.

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

his memo of Appeal along with written submissions submitted that the company

was incorporated in 2012 with specific object to, inter alia, carry on the business

of real estate and development and construction work, as per the Memorandum

of Association. The Company is a bona fide entity carrying on business in the

real estate sector and has been operating for the past many years.

Company Appeal (AT) No. 234 of 2020 4

4. It is further submitted that the omission to file the Company's financial

statements and annual returns for period fiscal years was the result of an

unintentional oversight and ignorance on the part of the person tasked with

handling such filing as well as the former Company Secretary who was assigned

that duty. The omission was neither intentional nor purposeful, the Company or

the Appellant should not be subjected to the severe penalty of having the

Company struck off as a result of the error. Based on these submissions the

impugned order is fit to be set aside and the Appeal be allowed.

5. On the other hand, the Ld. Counsel for the Respondent No. 1/ROC during

the course of argument and in his reply along with written submissions

submitted that in exercise of the power conferred upon the Registrar of

Companies under provision of Section 248 of the Companies Act, 2013 the said

Registrar can strike off the name of a Company from his register after complying

with certain formalities as provided by the said section when he has reasonable

cause to believe that the company is not carrying on business or in operation as

the company failed to file its statutory returns since its incorporation. The date

of incorporation of the said company in 26.12.2012, the company has not filed

its statutory returns since incorporation for the last 8 years.

6. It is further submitted that it is an evident from the records that the

Company has not filed its balance sheets and annual returns since incorporation

with the office of the Respondent. As per provision of Section 252 of the

Companies Act, 2013, a struck off company can be restored only on the direction

of the NCLT within a period of twenty years from the publication in the official

Gazette of the notice. In this regard, it is submitted that in terms of the said Company Appeal (AT) No. 234 of 2020 5

provisions, the NCLT while passing an order for restoration it is to be satisfied

that the company is carrying on business or in operation.

7. It is further submitted that as per available records maintained by the

office of the Registrar of Companies, West Bengal, the company was struck off

on 09.06.2017 after complying with the provision of section 248 of the Act. The

Registrar of Companies has issued notices to the companies as well as the

Directors under Section 248(1) (in STK-5) of the Act, read with Rule 7 of the

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

Rules, 2016 for removal of name of the company from the register of the

companies as there was reasonable cause to believe that the Company was not

functioning or in operation for the period of last two immediate preceding

financial years and has not made any application within such period for

obtaining the status of dormant company under Section 455 of the Companies

Act, 2013.

8. It is further submitted that due to non-filing of statutory returns by the

Company, the competent authority drew an opinion that the Company was not

carrying on business or in operation. As per provision of Section 248(5) of the

Act after expiry of the prescribed time period and as no response has been

received from the company and the public, a notice (in STK No. 7) dated

30.06.2017 was issued by the Registrar of Companies, West Bengal reflecting

the name of the company as strike off w.e.f. 09.06.2017 and the same was

published in the Official Gazette on 15.07.2017. Based on these submissions,

the Tribunal has rightly passed the impugned order, therefore, there is no merit

in the present Appeal, the present Appeal is fit to be dismissed. Company Appeal (AT) No. 234 of 2020 6

9. After hearing the parties and going through the pleadings made on behalf

of the parties as also the impugned order dated 31.05.2021, we observe that the

Tribunal has recorded in para 7 of the impugned order, the financial statements

for the financial years ending 31.03.2013 to 31.03.2018 which shows that the

Company is a going concern, but a look at the financial statements on the other

hand shows that the company was not doing any kind of business and further

para 8 it has been recorded that the company is not earning any revenue from

operations since its incorporation i.e. from 2012-13 to 2017-18, therefore, has

not earned any profits and does not have any fixed assets in the company.

• Taking all the facts aforenoted, we agree with the reasons given by the

Tribunal. The Impugned Order dated 15.10.2019 passed by the National

Company Law Tribunal, Kolkata Bench, Kolkata in Appeal No.

729/KB/2019 is hereby affirmed. There is no merit in the instant

Appeal, the instant Appeal is hereby dismissed.

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

(Kolkata Bench, Kolkata), forthwith.

[Justice Anant Bijay Singh] Member (Judicial)

[Ms. Shreesha Merla] Member (Technical)

New Delhi 16th November, 2022 R. Nath.

Company Appeal (AT) No. 234 of 2020