Metro Mining Pvt Ltd & Anr vs Registrar Of Companies , Mumbai

[Arising out of order dated 18.11.2019 passed by the National Company Law Tribunal, Mumbai Bench, Mumbai in C.P. 1982/252(1)/2019]

IN THE MATTER OF: 1. Metro Mining Private Limited Through Director Mr. Saurabh Jaydeep Nikam CIN: U14220MH2012PTC235468 Having registered Office at Shop No. P-5, First Floor, Bldg./Wing No. 9-10, Sidharth Nagar, St. Road, Mira Road (East), Thane-401107 Maharashtra. ....... Appellant No. 1. 2. Saurabh Jaydeep Nikam Director of Metro Mining Pvt. Ltd. Age about 21 years, 502, Thakkar Treasure, D Building, New Pandit Colony, Gangapur Road, Nashik- 422002, Maharashtra. ....... Appellant No. 2. Versus Registrar of Companies, Mumbai Everest Building, 100, Marine Drive, Mumbai-400002, Maharashtra. ....... Respondent. Present:

For Appellant: Mr. Avineesh Jha, Advocate. For Respondent:- Mr. Avinash Singh, Advocate for RoC. 2

JUDGMENT

(14th September, 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

18.11.2019 passed by the National Company Law Tribunal, Mumbai Bench,

Mumbai in C.P. 1982/252(1)/2019 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, Mumbai (the 'ROC'), was dismissed

by the Tribunal holding that the petitioner (Appellant herein) failed to provide

necessary information and proper financial statement.

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

i) The Appellants are the Original Petitioners before the NCLT, Bench at

Mumbai who have filed Company Petition No. 1982 of 2019 under Section 252

of the Companies Act, 2013 read with Rule 87A of the NCLT (Amendment) Rules,

2017.

ii) The Petitioner Company namely Metro Mining Pvt. Ltd. was incorporated

on 08.09.2012. The Petitioner Company has authorized share capital of Rs.

100000/- and minimum paid up capital of Rs. 10000/- The main objects of the

Petitioner Company are as follows:

(a) To carry on the business of mining, processing, producing,

trading of steel and all types of mining, mining related trading,

import and export of Gemstones, metals, goods, foods, and buy,

Company Appeal (AT) No. 37 of 2020 3

sale, process, semi-process of gemstones in India and outside

India.

(b) To carry on in India or elsewhere the business of prospecting,

exploring, operating and working on mines, quarries and to win, set,

crush, smelt, manufacture, process, excavate, dig, break, acquire,

develop, exercise, turn to account, survey, produce, prepare, remove,

undertake, barter, convert, finish, load, unload, handle, transport, buy

sell, import, export, supply and to as agent, broker, stockiest, distributor,

consultant, contractor, manager, operator or otherwise to deal in all sorts

of presents and future steel, ores, minerals, deposits, goods, substances

& materials, including sands, stones, and soils, chalk, clay, china clay,

betonies, broils, calcite and coal, lignite, brimstone, brine, bauxite,

limestone, precious and other stones, gold, silver, diamonds, iron,

aluminum, titanium, vanadium, mica, apalite, chrome, copper, gypsum,

rutile, sulphate, tin, zinc, zircon, tungsten, silicon, brass, and other allied

materials, by products, mixtures, blends, residues & substances, and to

do all incidental acts and things necessary for the attainment of the

objects.

(c) To search, survey, discover and find out and the acquire by concession,

grant, purchase, lease, license, degrees & tenders the allotment or

otherwise of land or water area from government, semi-government, local

authorities, private bodies, corporations and other persons, such rights,

power, and privileges whatever for obtaining mines, open cast mines,

Company Appeal (AT) No. 37 of 2020 4

bucket mines, quarries, deposits for the accomplishment of the above

objects.

iii) On 27.09.2012, Petitioner Company submitted Application No.209 for

Prospective Licence for Decorative Stone in the Bolangir District and after

verifying the necessary documents and other relevant documents, where upon

on 04.07.2015, the Directorate of Mines, Odisha issued Order and granted

Prospective Licence for Decorative Stone over an area of 50.40 Acre or 20.346

Hectors in Village - Jamuna No.5, PS Titilagarh in Bolangir District of Odisha.

iv) In October, 2017, Chartered Accountant of the Petitioner Company namely

Krutika and Associates prepared Audit Report of the Year 2017-2018 and filed

the same, along with the necessary documents with the Income Tax Department.

v) On 15.02.2018, Appellant No. 2, i.e. Saurab Jaydeep Nikam and Pratibha

Madhukar Pawar filed Form No. DIR-12 for appointment of Directors in the

Petitioner Company in the ROC, Mumbai. The said two persons were made

Directors of the Petitioner Company. At the time of filing the said Form, the

Company Secretary of the Petitioner Company, namely Janish Jayesh Modi

though provided sufficient information by the present Appellants, did not fill the

said form correctly and wrongly mentioned the Registered Address. The said

Company Secretary also did not inform the same to the present Appellants in

time but the Appellants came to know after the filing of Company Petition before

the NCLT, Mumbai.

vi) On 07.03.2018, after the issuance of the order, the Petitioner Company

has deposited necessary fees of Rs. 10,000/- in the Government Treasury vide

Company Appeal (AT) No. 37 of 2020 5

SBI Scroll No. 48, SBI, Balangir Branch, Odisha. Thereafter, the Petitioner

Company also submitted Form No. D to the Principal Secretary to Government,

Department of Steel and Mines, Odisha, Bhubaneswar.

vii) On 21.03.2018, after the acceptance of appropriate Application along with

necessary documents, the Mining Officer has accepted the said Application and

issued receipt in favour of the Petitioner Company. Thereafter, after compliance

of all the necessary and required formalities, Director of Geology has sent

Petrographic Study Report to the Petitioner Company for further proceedings.

On 04.07.2018, after the receipt of the said Mining Application, Mining Officer,

Balangir Circle considered the relevant documents and sent the same to the

Tahsildar, Mumbai for further proceedings.

viii) On 19.07.2018, pursuant to the provisions of Section 248(4) of the

Companies Act and Rule 7 of the Companies (Removal of names of Companies

from the Register of Companies) Rule, 2016, the Respondent/RoC had issued

Public Notice thereby proposing to remove/strike off the name of the Appellant

Company from the Register of Companies and also invited objections to be

submitted within 30 days from the date of Public Notice. On 04.09.2018, the

Ministry of Corporate Affairs has issued receipt for fees of Form No. DIR-12 in

favour of the Appellant Company.

ix) On 12.09.2018, pursuant to the provisions Section 248(5) of the

Companies Act and Rule 9 of the Companies (Removal of names of Companies

from the Register of Companies) Rule, 2016, the Respondent had issued notice

of striking off and dissolution of the Appellant Company. In October, 2018,

Company Appeal (AT) No. 37 of 2020 6

Chartered Accountant of the Petitioner Company namely Krutika and Associates

prepared Audit Report of the Year 2018-19 and filed the same along with the

necessary documents in the Income Tax Department. On 18.12.2018, Mining

Officer, Balangir Circle has been sent Mining Licence Application along with

necessary documents and technical enquiry report to the Director of Mines,

Odisha for further necessary action.

x) On 01.01.2019, Sanjeevani Consultancy issued letter stating that the

process regarding Mining Licence of the Petitioner Company is going on and also

stated that several necessary and required permissions have been granted by the

Mining Authorities to the Appellant Company.

xi) On 08.05.2019, considering the ongoing pending proposal arising out of

Mining Licence, the Appellant Company was left with no alternative but to file

Company Petition No. 1982 of 2019 before the NCLT, Mumbai Bench under

Section 252 of the Companies Act, 2013 and prayed for restoration of the

Appellant Company in the Register of Companies. On 26.06.2019, after issuance

of notice, the Respondent/RoC was directed to file Reply within 15 days. On

22.10.2019, the NCLT adjourned the said matter till next date i.e. 18.11.2019.

Till the said date, the Respondent had not filed any reply to the said Petition. On

18.11.2019, without considering the necessary documents submitted before the

RoC, ongoing process of Mining Licence and no reply filed by Respondent, the

NCLT was pleased to dismiss the said Company petition without assigning any

specific reasons. Hence this Appeal.

Company Appeal (AT) No. 37 of 2020 7

3. The Learned Counsel for the Appellants during the course of argument

and in his written submissions submitted that after the appointment of present

Directors, the Company Secretary Janish Jayesh Modi did not mention the

present addresses of the said Directors in the prescribed Form submitted to the

ROC. The said Company Secretary committed the said fault which resulted in

the present litigation. Therefore, notices could not be served to the Directors of

the Appellant-Company.

4. It is further submitted that even after service of notice, the Respondent/

ROC did not appear before the NCLT nor filed any reply. Inspite of the same, the

NCLT was pleased to pass present impugned order without assigning specific

observations. As per Section 252(1), the Tribunal ought to have given reasonable

opportunity to the Respondent/ROC. Since incorporation the Appellant-

Company is carrying on business as mentioned in the MOU thereby submitting

various applications for mining license to the Government Authorities which

subsequently issued mining license to the Appellant-Company. Further, on

04.07.2018 (at page 96 of the Appeal), the Mining Officer had issued

corresponding letter thereby considering application of the Appellant-Company

for mining license which established the case that the Appellant-Company was

carrying on its business. Thereafter, on 19.07.2018, Respondent ROC issued

public notice under Section 248 of the Companies Act, 2013.

5. It is further submitted that Page Nos.91 to 96 of the Appeal shows that the

Appellant-Company submitted application for grant of mining lease, study

report, correspondence letters etc. with the Government Authorities. Further,

Company Appeal (AT) No. 37 of 2020 8

the Appellant-Company also submitted Audit Reports from 2017 to 2019 with

ROC. Thus, the business of the Appellant-Company was on the verge of starting

prior to the striking off notice dated 12.09.2018, and the business came to be

stand still due to the striking off of the company.

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

the instant Appeal be allowed.

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

course of argument and in his reply, stated that the Appellant company i.e. Metro

Mining Private Limited was incorporated with the office of the Registrar of

Companies, Mumbai on 08.09.2012, but due to failure in filing of its statutory

returns since incorporation, the name of the company has been considered for

striking off by the Registrar of Companies, Mumbai in suo moto action under the

provisions of Section 248 of the Companies Act, 2013 and also in pursuance of

the circulars issued by the Ministry of Corporate Affairs, Govt. of India, New

Delhi from time to time. The basis for striking off the name of the company was

the continuous non-filing of the statutory returns (which are required to be filed

under the Companies Act, 1956 and/or the Companies Act, 2013) and that the

company was not carrying on any business or operation for a period of two

immediately preceding financial years and has not made any application within

such period for obtaining the status of a dormant company under Section 455,

prior to its striking off. The aforesaid situation has arisen due to inaction on the

part of the Appellant Company and its Directors/Officers. The appropriate action

Company Appeal (AT) No. 37 of 2020 9

was taken by the Respondent No. 1 to strike off the company, which is duly

prescribed under Section 248 of the Act.

7. It is further stated that in absence of any statutory filing from the Company

and its Directors for more than 2 years, the Registrar struck off the name of the

company on 11.09.2018 and the dissolution order was published on the website

of the Ministry vide STK 7. Aggrieved by the said action of the Respondent No. 1,

the appellant approached the NCLT, Mumbai Bench for restoration of the

Company under Section 252 of the Companies Act. The Respondent No. 1, filed

its reply before the NCLT on 16.09.2019, objecting/opposing the petition. The

NCLT after hearing the matter, rightly dismissed the said Company petition vide

the impugned order dated 18.11.2019.

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

of the parties, we are of the considered view that the company was making efforts

to start mining activity and that its mining licence was under consideration of

the Government, which should have been considered by the NCLT. Hence,

impugned order dated 18.11.2019 is set aside. The appeal i.e. C.P.

1982/252(1)/2019 filed by the appellants before the NCLT is restored to the

original file subject to condition that Appellant Company shall pay costs of Rs.

50,000/- to the Registrar of Companies, Mumbai within six (6) weeks from the

passing of this judgment. The NCLT is requested to hear the parties after

issuance of notice, and pass reasoned order in accordance with law at an early

date.

Company Appeal (AT) No. 37 of 2020 10

With the above observations and directions, the instant Appeal is disposed

off.

9. 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,

Mumbai Bench, Mumbai, forthwith.

[Justice Anant Bijay Singh] Member (Judicial)

[Ajai Das Mehrotra] Member (Technical)

New Delhi 14th September, 2023 R. Nath.

Company Appeal (AT) No. 37 of 2020