Panthera Developers Pvt. Ltd Through ... vs Sankalp Buildwell Pvt. Ltd & Ors

Panthera Developers Pvt. Ltd. 315/274, 2nd Floor, Westend Marg, M.B. Road, Saidulajab, New Delhi- 110030 dharamchugh@gmail.com ...Appellant Versus 1. Sankalp Buildwell Pvt. Ltd. 315/274, 2nd Floor, Westend Marg, M.B. Road, Saidulajab, New Delhi- 110030 Sankilp_sec@gmail.com 2. Trinity Capital (Sixteen) Ltd. Lee Cascades, Edith Cavell Street, Port Louis Republic of Mauritius manvir@premierfunservices.com 3. Trikona Advisors Ltd. Now ARC P.O. Box 309, Ugland House South Church Street, George Street Grand Cayman, Cayman Islands, U.K. - KY1-1106 4. Mr. Aashish Kalra 100R, Model Town, Ward 31, Panipat 132103 Haryana aashish@kalras.com 5. Mr. Saurabh Killa 4B, Wood Street, Kolkata 700017 West Bengal Saurabh.killa@gmail.com 6. Mr. Rakshitt Chugh B-20, Satyawati Colony, Ashok Vihar, Phase-3, Delhi- 110052 India rchugh@peaknucapital.com 2

7. Mr. Debojyoti Das A-11, Second Floor, New Rajendra Nagar, New Delhi 110060 CS_ debojyoti@gmail.com 8. M.M. Gandhi 304 Sholay Apartments Raheja Complex Seven Bungalows Versova, Mumbai- 400061 Gandhimahesh52@gmail.com

9. Pravin Rathod 74, Chitra Apartment 7th Floor, Gokuldas Pasta Road Dadar, Mumbai- 400014 pravinrathodyo@gmail.com

10. Mr. Sanjeev Sapra C-763, New Friends Colony, New Delhi 110025 Sanjiv.s@ssaindia.net ...Respondents 11. Regional Director (Northern Region) A-14, Sector-1, PDIL Bhawan, (Near Indian Oil Building) Noida (U.P.) rd.north@mca.gov.in 12. Registrar of Companies (NCT of Delhi & Haryana) 4th Floor, IFCI Tower, 61 Nehru Place, New Delhi 110019 roc.delhi@mca.gov.in ..Proforma Respondents Present: For Appellant: Mr. Ashish Verma, Mr. Neeraj Chaudhry, Advocates. For Respondent: Mr. Kausik Chatterjee, Ms. Samridhi, Advocates for R-1.

JUDGEMENT

(15th May, 2023)

JUSTICE RAKESH KUMAR, MEMBER (JUDICIAL)

The present appeal has been preferred under Section 421 of

the Companies Act, 2013 against an order dated 13.01.2023 3

passed by National Company Law Tribunal, New Delhi Bench,

Court III (hereinafter referred to as 'NCLT') whereby the learned

NCLT has allowed IA No.216/ND/2022 filed in CP No.58/2012 on

behalf of Respondent No.1 (Sankalp Buildwell Pvt Ltd). The

Learned NCLT while allowing IA No.216/2022 dismissed CP

No.58/ND/2012. The order impugned for better appreciation is

reproduced as follows:

The present IA No. 216 of 2022 has been filed by Sankalp Buildwell Private Limited (hereinafter, referred to as the 'Applicant'), which is the Respondent No.1 in the main Company Petition No. 58(ND)/2012, under Rule 11 of NCLT Rules, 2016 seeking the following main relief:

"al The Company petition being C.P. No. 58(ND)/2012 [Panthera Developers Private Limited vs. Sankalp Buildwell Private Limited & Ors.] pending before this Hon'ble Tribunal be dismissed."

2. The Applicant herein has sought dismissal of CP. No. 58/ND/2012 on the ground that the Applicant in that CP viz., M/s. Panthera Developers Private Limited was struck off from the register of ROC on 08.08.2018 vide Notice No. ROC/DELHI/248(5)/STK-7/4865 of the RoC. In the CP. No. 58/ND/2012, the petitioner M/s Panthera Developers Private Limited had sought the following reliefs:

i) "Direct Respondent no.4 and 5 to produce documents verifying their appointment as nominee Directors for taking any further action in this regard by to Respondent No. 1 Company.

ii)Declare the removal of the existing Directors Respondent no. 8 and 9 and appointment of Respondents 4 and 5 fraudulently by filing of Form 32 by Respondent No. 7 as null and void.

iii)Restrain Respondents nos. 2, 3, 4 and 5 from appointing any nominee directors of Respondent no.2 to the board of the Respondent Company without proper board resolution passed in a legally held meeting of the Respondent No. 2.

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iv)Declare the notice of Board meeting of Respondent No. 1 Company issued by Respondent No. 7 be null said void.

v)Restrain Respondent no. 2, 3, 4 & 5 from illegally and fraudulently proposing/ buying their shares of the petitioner in the respondent company and further not effect any transfer of shares in the records of the Company.

vi) Declare the change in Registered Office of the Respondent No. 1 Company on along with the Form 18 filed with Registrar of Companies as null and void

vii) Declare all other acts, deeds and things done by the Respondents in pursuance of the aforesaid forms or otherwise, if any, not in the knowledge of the Petitioner as illegal and null and void.

viii) Pass an appropriate order directing the Respondent No. 1 Company to give consequential effects in implementation of the directions/ declaration as per Prayers (i) to (vii) above.

ix)Pass an appropriate order granting the interim reliefs as as prayed for in Para 69 above as final reliefs.

x) Pass such other orders as may be deemed fit and proper by this Hon'ble Board in the facts and circumstances of the case.

3. It is submitted by the Applicant that subsequently, M/s. Panthera Developers Private Limited had challenged the action of ROC by filing an appeal No. 209/252(ND)/2019 under Section 252 of Companies Act, 2013, which was allowed vide order dated 15.05.2019, subject to the condition that the company shall file the outstanding documents for defaulting years, make payment of late fees, other charges and complete necessary formalities as prescribed together with payment of the cost of Rs. 25,000/- in the Prime Minister Relief Fund (PMRF).

4. We have heard the Ld. Counsel for the Applicant and perused the documents placed on record. It is a matter of fact that M/s. Panthera Developers Private Limited was struck off from the register of ROC on 08.08.2018 and an appeal No. 209/252(ND)/2019 under Section 252 of Companies Act, 2013 was preferred by it, which was allowed by this Tribunal vide order dated 15.05.2019 subject to payment of cost of Rs. 25,000/- to the Prime Minister Relief Fund. The restoration of the petitioner company's name in the Register was further subject to their filing all outstanding documents for the defaulting years as required by law and completion of all formalities, including payment of any late fee or other charges which are leviable by the respondent for the late filing of statutory returns.

5. During the course of hearing, the Applicant brought to our attention that the CA. No. 448 of 2022 filed in Appeal No. 209/252(ND)/2019 by one of the shareholders of M/s. Panthera Developers Private Limited, under Rule 11 of 5

NCLT Rules 2016, for seeking modification of the order dated 15th May 2019 to the extent of removing condition of filling of pending documents with the Registrar of Companies, NCT of Delhi and Haryana, has already been dismissed by this Tribunal vide order dated 23.12.2022 with cost of Rs. 50,000/- to be deposited by the Applicant in the Prime Ministers Relief Fund.

6. At this stage, we also consider it appropriate to refer to the master data of M/s. Panthera Developers Private Limited available in public domain on the website of the Ministry of Corporate Affairs (MCA), which is reproduced below, for the sake of reference:

7.Evidently, the status of M/s. Panthera Developers Private Limited, the Applicant in main Company Petition No. 58/(ND1/2012, in the above referred Master Data is shown as "strike off" as on date. Hence, in our considered view, no proceedings can be initiated by or against the "Struck off Company" 6

8. At this juncture, we also refer to Section 250 of the Companies Act, 2013, which reads as below:

250. Effect of company notified as dissolved. Where a company stands dissolved under section 248, it shall on and from the date mentioned in the notice under sub-section (5) of that section cease to operate as a company and the Certificate of Incorporation issued to it shall be deemed to have been cancelled from such date except for the purpose of realising the amount due to the company and for the payment or discharge of the liabilities or obligations of the company.

9. On perusal of the abovesaid provision, it is evident that the legislature has given exception to a struck off company to be treated as dissolved only, when the company has to realise its dues or pay dues in discharge of its liability. However, on perusal of the prayers sought in the petition filed by M/s. Panthera Developers Private Limited, it is observed that none of its prayers come under this exception.

10. Since the Petitioner in the Company Petition No. 58/(ND)/2012 M/s. Panthera Developers Private Limited ceased to exist as a Company, we allow the prayer made by the Applicant herein. Accordingly, the present I.A. No. 216/ND/2022 is allowed.

11. In view of the above, the CP. No. 58/ND/2012 stands Dismissed.

Typed copy of Company Master Data CIN U70109DL2006PTC151582 Company Name PANTHERA DEVELOPERS PRIVATE LTD ROC CODE ROC-DELHI Registration Number 151582 Company Category Company Limited by Shares Company Sub-category Non-Govt company Class of Company Private Authorised Capital(Rs) 100000000 Paid Up Capital(Rs) 12900000 Number of Members(Applicable 0 In case of company without Share Capital) Date of Incorporation 03/08/2006 Registered Address F-1898 First Floor (Opp B-50) South Exten. Part I, New Delhi South Delhi DL 110049 IN Address other than R/o where All or any books of account And papers are maintained - E mail ID aashish@kalras.com Whether listed or not Unlisted ACTIV compliance Suspended at stock exchange - Date of last AGM 29/09/2012 Date of Balance Sheet 31/03/2012 7

Company Status (for efiling0 Strike off\

Charges Charge Id Assets under charge Charge Amount Date of creation

Date of Modification Status

No charges exists for Company/LLP

Directors/Signatory Details

Din/pan Name Begin date End date Surrendered

01431119 DHARAM VIR CHUGH 30/09/2011 - 01877020 DEVINDER PARKASH KALRA 30/09/2011 05242508 ANURADHA KALRA 30/12/2014

2. The short fact of the case is that the appellant herein long

back in the year 2012 had filed CP No.58/2012 under Section 397

and 398 read with Section 402 and 403 of the Companies Act,

1956 primarily making an allegation of oppression and

mismanagement of Respondent No.1 company. In the CP 58/2012

the appellant herein has prayed for following reliefs:

(i) Direct Respondent no.4 and 5 to produce documents

verifying their appointment as nominee Directors for

taking any further action in this regard by the

Respondent No. 1 Company.

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(ii)Declare the removal of the existing Directors

Respondent no.8 and 9 and appointment of

Respondents 4 and 5 fraudulently by filing of Form 32

by Respondent No 7 as null and void.

(iii)Restrain Respondent nos. 2, 3, 4 and 5 from

appointing any nominee directors of Respondent no.2 to

the board of the Respondent Company without proper

Board resolution passed in a legally held meeting of the

Respondent No. 2.

(iv)Declare the notice of Board meeting of Respondent

No. 1 Company issued by Respondent No. 7 be null and

void.

(v)Restrain Respondent no.2, 3, 4 & 5 from illegally and

fraudulently proposing/buying their shares of the

petitioner in the respondent company and further not

effect any transfer of shares in the records of the

Company.

(vi)Declare the change in Registered Office of the

Respondent No. 1 Company on along with the Form 18

filed with Registrar of Companies as null and void. 9

(vii)Declare all other acts, deeds and things done by the

Respondents in pursuance of the aforesaid forms or

otherwise, if any, not in the knowledge of the Petitioner

as illegal and null and void.

(viii)Pass an appropriate order directing the Respondent

No. 1 Company to give consequential effects in

implementation of the directions/declaration as per

Prayers (I) to (vii) above.

(ix)Pass an appropriate order granting the interim reliefs

as prayed for in Para 69 above as final reliefs.

(x)Pass such other orders as may be deemed fit and

proper by this Hon'ble Board in the facts and

circumstances of the case.

3. During the pendency of the said Company Petition since the

appellant failed to file statement and annual return before the

Registrar of Companies (hereinafter referred to as ROC) by order

dated 08.08.2018 exercising powers under Section 248(5) of the

Companies Act, 2013 the ROC struck down the name of the

appellant company from the register of companies maintained in

the office of ROC. From the record it is evident that the appellant

company after the year 2012 had not filed any statement/return 10

to the ROC and as such vide Notice No.ROC Delhi/248(5)/STK-

7/4865 dated 08.08.2018 the appellant company's name was

struck off. The appellant company was incorporated on 3rd

August, 2006 with Corporate Identity Number

U70109DL2006PTC151582 issued by the ROC having registered

office at B-1, The Mira Corporate Suits, Old Ishwar Nagar, New

Delhi.

4. The appellant in CP No.58/2012 had claimed that it was

holding 60000 Class A equity shares of Respondent No.1 company.

Subsequently after the name of the company was struck off from

the register of ROC by order dated 08.08.2018 the appellant filed

an appeal under the provisions of Section 252 of the Companies

Act, 2013 before the NCLT vide Appeal No.209/252/ND/2019. It

was admitted by the appellant before the NCLT that the appellant

had failed to file its annual return and financial statements after

the year ending 31.03.2012. The appellant company also admitted

its default in carrying out the statutory compliances but a plea was

taken that it happened due to a dead lock in the management of

the company. A plea was taken that without following the

principles of natural justice the ROC had passed the order of

striking off the name of the company. The NCLT after considering 11

the facts and circumstances allowed the appeal by its order dated

15.05.2019 considering it just and equitable to restore the name

of the company in the register of companies. Learned NCLT

allowed the application for restoration subject to payment of cost

of Rs.25000/- to the Prime Minister's Relief Fund. It was further

directed that the restoration of the appellant company's name in

the register will be subject to their filing all outstanding documents

for the defaulting years as required by law and completion of all

formalities including payment of any late fee or other charges

which were leviable for the late filing of statutory returns. Only

after complying such conditions it was directed to restore the name

of the appellant company in the register of ROC.

5. It is further evident that even though by order dated

15.05.2019 the NCLT allowed the application for restoration of

name of company subject to fulfilment of certain conditions, the

appellant did not take any proper step and much belatedly in the

year 2022 on behalf of the appellant an application vide CA

No.448/2022 was filed before the NCLT under Rule 11 of the NCLT

Rules, 2016 for the following reliefs:

a) Direct for listing of the instant Appeal No. 209/252/2019; 12

b)Modify the order dated 15th May 2019 to the extent of

removing condition of filing of pending documents with the

Registrar of Companies, NCT of Delhi and Haryana, Ministry

of Corporate Affairs, Government of India;

c)Appoint an independent director cum administrator on the

Board of M/s Panthera Developers Pvt. Ltd.;

d)Pass any other order as the Hon'ble Tribunal may deem fit

in the facts and circumstances in the present matter.

6. However, learned NCLT considering the non-seriousness on

the part of the appellant/company dismissed the said application

with imposition of cost of Rs.50,000/-. Against the said order the

appellant preferred an appeal vide Company Appeal (AT)

No.7/2023 in which notices have been directed to be issued to

Respondents.

7. Mr. Ashish Verma, learned counsel appearing on behalf of the

appellant assailing the impugned order i.e. order dated 13.01.2023

has primarily argued that only on the ground that appellant

company's name has been struck off from the register of ROC the

Company Petition filed by the appellant i.e. CP No.58/2012 was

not required to be rejected by NCLT. He tried to persuade the

Court that even after the name of the Company was struck off from 13

the register of ROC the Company Petition i.e. CP No.58/2012 was

required to proceed. He submits that the appellant company was

having huge share holding in the Respondent No.1 company and

since there were complete oppression and mismanagement the

appellant had filed CP No.58/2012. According to learned counsel

for the appellant even after the company's name was struck off the

CP was needed to be continued in the light of law laid down by

Hon'ble Supreme Court as well as other orders passed by different

courts.

8. Learned Counsel for the appellant has placed heavy reliance

on a judgement of Hon'ble Supreme Court reported in (2020) 7

Supreme Court Cases 654 (Commissioner of Income Tax,

Jaipur Vs. Gopal Shri Scrips Pvt Ltd). It was argued that in

Gopal Shri Scrips Pvt Ltd case (Supra) the Income Tax Department

had assailed the order of the Hon'ble High Court of Rajasthan

whereby appeal preferred by assesse was dismissed having become

infructuous in view of the fact that the name of the company was

subsequently struck off under Section 560(5) of the Companies

Act, 1956. He submits that Section 560 of the Companies Act,

1956 (old act) is similar to Section 241-242 of Companies Act, 14

2013. He has specifically drawn our attention to para 10 of the

Hon'ble Supreme Court Judgement which is quoted hereinbelow:

"12. In our view, the High Court was wrong in dismissing the appeal as having rendered infructuous. The High Court failed to notice Section 506(5) proviso (a) of the Companies Act and further failed to notice Chapter XV of the Income Tax Act which deals with "liability in special cases" and its clause (L) which deals with "discontinuance of business or dissolution". The aforementioned two provisions, namely, one under the Companies Act and the other under the Income Tax Act specifically deal with the cases of the Companies, whose name has been struck off under Section 506 (5) of the Companies Act. These provisions provide as to how and in what manner the liability against such Company arising under the Companies Act and under the Income Tax Act is required to be dealt with. Since the High Court did not decide the appeal keeping in view the aforementioned two relevant provisions, the impugned order is not legally sustainable and has to be set aside."

9. Learned counsel for the appellant has further placed reliance

on an Interlocutory Order passed by the Income Tax Appellate

Tribunal, New Delhi Bench. He has produced copy of the said

order. At the time of arguments he has referred to number of

paragraphs, however, he has specifically relied on para 24 of the

said order which is quoted hereinbelow:-

"24. Though the Assesee company has been struck off under Section 248 of the Companies Act, 2013, in view of sub-sections (6) and (7) of Section 248 and Section 250 of Companies Act, 2013, the Certificate of Incorporation issued to the Assessee company cannot be treated as cancelled for the purpose of realising the amount due to the company and for payment or discharge of the liability or obligations of the company, we are of the opinion that the Appeal filed by the struck off Assessee company or Appeal filed by the Revenue against the struck off company are 15

maintainable. Therefore, by rejecting the contention of the Ld. DR, we hold that the present Appeal filed by the Assessee (struck off company) is maintainable and the same has to be decided on merit.

(ii) Since, we held, the present Appeal is maintainable, the Counsel appearing on behalf of the Assessee Company has every locus to represent the Assessee in the present Appeal.

(iii) Office is directed to list the appeal before the regular Bench for hearing on 07.09.2022."

10. It was further argued by the learned counsel for the appellant

that against rejection of appellant's IA which was filed before the

NCLT for modification of the restoration order passed under

Section 252 of the Companies Act and was dismissed with

imposition of cost of Rs.50,000/-, the appellant's appeal is pending

before this Appellate Tribunal. Accordingly, he submits that the

order impugned in the present appeal is liable to be set aside on

the ground that even after striking off the name of the company

from the register of ROC the CP No.58/2012 was maintainable.

11. Mr. Kaushik Chatterjee, learned counsel for the Respondent

who had also filed caveat application in the present appeal

opposing the appeal submits that once the appellant company

cease to remain as company the Learned NCLT has rightly allowed

the application filed by the Respondent No.1 for dismissal of CP

No.58/2012 which was primarily filed on an allegation of

oppression and mismanagement of Respondent No.1. He submits 16

that after the name of the appellant company was struck off from

the register of ROC there was no reason to allow the said company

petition to further continue. He further submits that the non-

seriousness on the part of the appellant is evident from the fact

that after the submission of annual return/statement lastly on

31.03.2012 before the ROC, no step was taken by the appellant

company to file annual return/statement continuously and only

thereafter, the learned ROC exercising powers under Section 248

of the Companies Act, 2013 on 08.08.2018 issued final notice

regarding striking off the name of the appellant company from the

register of ROC. Even after striking off order one year thereafter

the appellant filed an appeal under Section 252 of the Companies

Act, 2013 before the NCLT for restoration of the name of the

appellant company. Learned NCLT in view of just and equitable

consideration allowed the application for restoration, subject to

fulfilling certain mandatory conditions and also with imposition of

cost of Rs.25000/-. The said order was passed on 15.5.2019 in

Appeal No.209/252/ND/2019. However, again for about three

years the appellant company slumbered over his right to get the

name of the company restored after fulfilling conditions imposed

by the NCLT. Instead of complying the condition as per order dated 17

15.05.2019, in the year 2022 the appellant company again filed an

application by its CA No.448/2022 mainly for the purposes of

modification of order dated 15.05.2019 besides making prayer for

other reliefs. This time learned NCLT besides dismissing the

application imposed the cost of Rs.50,000/-. Learned counsel for

Respondent No.1 submits that the aforesaid conduct are sufficient

to draw an inference that the appellant company was not at all

serious to pursue his CA filed regarding oppression and

mismanagement of Respondent No.1 which was obviously pending

since 2012. According to learned counsel for Respondent the

appellant may not get any support from either of the

judgement/Interlocutory Order on which reliance has been placed

by the learned counsel for the appellant. He submits that the

present appeal is fit to be rejected.

12. Besides hearing learned counsel for the parties we have

perused the materials available on record. It is true that the

appellant, while was on the role of the register of ROC, had filed a

Company Petition on an allegation of oppression and

mismanagement of Respondent No.1 company which was

numbered as CP No.58/2012, but during the pendency of the said

petition the name of the appellant company was struck off due to 18

his own default of non-filing of statutory return before the ROC

continuously after 2012 and finally on 08.08.2018 the name of the

appellant company was struck off from the register of the ROC. CP

No.58/2012 was filed by the appellant in the capacity of company

incorporated under the Companies Act. Once the name of the

appellant company was ceased to be company it was not

competent to maintain the CP No.58/2012. The Learned NCLT

rightly dismissed the same by the impugned order At this juncture

it would be appropriate to examine Section 250 of the Companies

Act which is reproduced hereinbelow:-

"250. Effect of company notified as dissolved-Whether a

company stands dissolved under Section 248, it shall on and

from the date mentioned in the notice under sub-section (5) of

that section cease to op0erate as a company and the

Certificate of Incorporation issued to it shall be deemed to have

been cancelled from such date except for the purpose of

realising the amount due to the company and for the payment

or discharge of the liabilities or obligations of the company."

13. On examination of the aforesaid provision there is no doubt

that after the striking off the name, a company ceases to remain

as a company. However, even after dissolution of the company in 19

view of striking off its name from the register, its existence remains

only for the purpose of realising the amount due to the company

or for the payment or discharge of the liabilities or obligations of

the company. Meaning thereby that after striking off the name of

the appellant company the appellant was not entitled to pursue

the CP No.58/2012 which was primarily filed on an allegation of

oppression and mismanagement of Respondent No.1 not for

realisation of any debt. In so far as reliance placed by learned

counsel for the appellant on Gopal Shri Scrips Pvt Ltd's case

(Supra) is concerned, we are of the opinion that the appellant may

not get any assistance from the said judgement. The said case was

primarily in relation to Tax liabilities and in the said case

provisions of Income Tax Act, 1961 particularly Section 260 A and

176 of the Income Tax Act was under consideration besides the

provisions contained under Section 560 of the Companies Act.

However, in the present case the appellant had filed CP

No.58/2012 on an allegation of oppression and mismanagement

in the affairs of Respondent No.1 company. The present case

cannot be equated with a dispute relating to realisation/claim of

the Income Tax liabilities. Similarly Interlocutory Order passed by

the Income Tax Appellate Tribunal on which reliance was placed 20

by the Learned counsel for the appellant, the appellant may not

get any assistance from the said judgement. The said case was

also in relation to the dispute under the Income Tax Act and tax

liabilities. Accordingly we are of the opinion that since the

appellant on the date of passing of the impugned order had ceased

to be company under the Companies Act and its name was already

struck off from the register of the ROC, the CP No.58/2012 had

become infructuous and learned NCLT has rightly dismissed the

CP No.58/2012.

14. We do not find any error in the impugned order warranting

interference. Accordingly the appeal stands dismissed without

cost.

(Justice Rakesh Kumar) Member (Judicial)

(Dr.Alok Srivastava) Member (Technical) bm