Parinda Buildcon Private Limited vs Registrar Of Companies Nct Of Delhi & ...

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NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH, NEW DELHI Company Appeal (AT) No. 111 of 2022 IN THE MATTER OF: M/S PARINDA BUILDCON PVT. LTD. Reg. Office: B-292, Chandra Kanta Complex, Shop No. 08, Near Metro Pillar No. 161, New Ashok Nagar, New Delhi - 110096 ...Appellant

Versus THE REGISTRAR OF COMPANIES,

4th Floor, IFCI Tower 61, Nehru Place, New Delhi - 110019 ...Respondent No. 1

2. INCOME TAX DEPARTMENT

DCIT (High Court Cell) Layer's Chamber, Block No. 1 Room No. 428 & 429 Delhi High Court ...Respondent No. 2

3. MR. UDAYRAJ PATWARDHAN

RP for Adel Landmarks Ltd. Address - Sumedha Management Solutions Pvt. Ltd. C-703, Marathon Innova, Off Ganapatrao Kadam Marg, Lower, Parel (West), Mumbai City, Maharashtra - 400013 ...Respondent No. 3

Present: For Appellant : Mr. Abhijeet Sinha, Mr. Apoorv Agarwal, Mr. Saikat Sarkar, Ms. Riya Thomas and Ms. Heena Kochar, Advocates.

Company Appeal (AT) No. 111 of 2022 2

For Respondent : Mr. Sanjay Bhat and Ms. Apoorva Chowdhury, Advocate for R-3 (RP).

JUDGMENT

Per: Justice Rakesh Kumar Jain:

This appeal is directed against the order dated 11.04.2022, passed by

the National Company Law Tribunal, Bench II, New Delhi by which an Appeal

No. 509/252/(ND)/2020, filed by the Appellant, under Section 252 of the

Companies Act, 2013 (in short 'the Act') for restoration of the name of the

Appellant Company to the register of the Registrar of Companies, NCT of Delhi

and Haryana (Registrar) has been declined.

2. The brief facts of this care are that the Appellant Company was

incorporated under the Companies Act, 1956 on 26.04.2007 vide CIN

U45400DL2007PTC162637 as a Pvt. Company Ltd. by shares with the

Registrar of Companies, NCT of Delhi and Haryana having its registered office

at New Ashok Nagar, New Delhi.

3. The main objects of the Appellant was to carry on the business of

builders, promoters, developers, colonizers, contractors, architects, town

planners, and to purchase, take on lease or in any other lawful manner any

area, land building structures, space and to sell, build, repair, construct,

promote, develop, maintain, manage, let, sublet, give on lease, dispose off or

otherwise deal in all types of land, building, markets, factory, sheds, flats,

residential commercial and industrial part, etc.

4. The Registrar of Companies Delhi and Haryana initiated proceedings

under Section 248 of the Act and struck off the name of the Appellant

Company from its register vide notice no. RoC-DEL/248(5)/STK-7/4865

Company Appeal (AT) No. 111 of 2022 3

dated 08.08.2018. The name of the Appellant Company appeared at serial no.

15095 in the list of companies whose names were struck off. The name of the

Appellant Company was struck off from the register on account of default in

statutory compliances, namely, failure to file financial statements & annual

returns since 31.03.2014.

5. The Tribunal noticed in its order that audited balance sheets of the

Appellant for the financial year 2013 -14 to 2018-19 has shown 'Nil' revenue

from the operations, copies of the income tax returns for the assessment year

from 2015-16 to 2020 -21 reflected total income and payment of taxes as 'Nil'.

It has also noticed that the Department of Income Tax filed its report observing

that "huge amount of work in progress amounting to Rs. 502224949 (approx.)

is pending since many years. This amount is almost equivalent to loan taken

from related concern. In earlier years, this amount has been shown as sundry

creditors" The Tribunal sought specific comments from the Registrar in

respect of this observation of Income Tax Department. The Registrar filed an

additional affidavit on 01.12.2021 which has been noticed in the impugned

order and it has also noticed that the Registrar has stated that it has no

objection if the name of the Company is restored to the register of ROC.

However, the Learned Tribunal noticed in the impugned order that the

Appellant has paid the Income Tax only in the assessment year 2009 -10. The

tripartite collaboration agreement dated 05.07.2008 signed amongst Mr. K.H.

Khan, Mrs. Shaheda Begum and Mr. Karar Ahmad as first party and M/s

Upkar Developers (India) Pvt. Ltd. as second party and M/s Era Landmarks

(India) Limited as the third party did not depict, in any manner, that the

Company Appeal (AT) No. 111 of 2022 4

Appellant Company was either in operation or carrying on its business. The

assignment agreement dated 25.01.2020 between M/s Adel Landmarks Ltd.

and the Appellant Company does not give any ownership rights over any of

the immovable properties. In this background, the Tribunal formed a opinion

that inventories reflected in the report of Registrar are merely book entries

and the Appellant has failed to demonstrate that such inventories physically

exist and that the Appellant Company has not filed its financial statements

since 2014. The Tribunal relied upon a decision of this Tribunal rendered in

the case of Alliance Commodities Pvt. Ltd. Vs. Office of Registrar of

Companies, West Bengal, CA (AT) No. 20 of 2019 and dismissed the appeal.

6. Aggrieved against the said order, the present appeal has been filed.

7. Counsel for the Appellant has submitted that the Appellant is a 100%

subsidiary of Adel Landmarks Limited which is under insolvency vide order

dated 05.12.2018 passed in CP (IB) 1083 of 2018 by the Tribunal. The

Appellant is a land owning company whereas Adel Landmarks Ltd. is the

developer company. It is submitted that the Tribunal has erred in making an

observation that the Appellant is neither in operation or carrying on its

business at the time when the name of the Appellant Company was struck

off. In this regard, it is submitted that the Appellant was very well in operation

when the name of the Appellant Company was struck off which is evidenced

by the tripartite collaboration agreement dated 05.07.2008 entered into

between the developer company, Karar Ahmed and M/s Upkar Developers

because the intent of the said collaboration agreement was to develop the land

into a project, named, 'the Arena' comprising of a township consisting of a

Company Appeal (AT) No. 111 of 2022 5

residential layout, residential buildings, commercial complexes alongwith

clubhouses, swimming pools, etc and other similar developments and for the

said purpose various parcels of lands situated at village, Kengeri Hobli,

Bangalore South Taluk, admeasuring 36 Acres and 4 guntas was transferred

to the Appellant Company vide an assignment agreement dated 25.01.2010

whereas the developer company had transferred all of its rights, duties and

obligations under clause 2.7 of the collaboration agreement to the Appellant

Company for operational convenience of implementing and marketing the

project, namely, Arena.

8. It is also submitted that in compliance with the terms of the

collaboration agreement and for the sake of the project, the Appellant opened

a joint locker bearing no. E 410 on 22.09.2010 in the Bank of Maharashtra

to store the title deeds of the schedule property upon its release from HUDCO.

It is further argued that due to the financial stress of the developer company,

the Developer Company was driven into insolvency and the by virtue of the

assignment agreement, the existence of the Appellant Company was

interlinked with the developer company. It is also argued that information

memorandum executed by Respondent No. 3. The details have been given of

the project undertakes by the Corporate Debtor in which the Appellant's land

being used under the project, named, 'Arena'. It is also argued that the

Appellant has also placed on record the statement of assessable income for

the financial year 2015-16, statement of assessable income for the financial

year 2016-17. In both the statements the funds received from Bangalore have

been reflected. The salaries of guards and employees have been paid which is

Company Appeal (AT) No. 111 of 2022 6

evidenced by the balance sheet of the Appellant Company for the year 2015-

16. The provident fund and TDS payments have been made which indicates

that taxes and mandatory statutory compliances have been made which are

also reflected in the balance sheet for the year 2015-17.

9. Counsel for the Appellant has further argued that Section 252 (3)

provides that name of the company can be restored if it is carrying on

business or is in operation or otherwise it is just. In this regard, Counsel for

the Appellant has relied upon the decisions of this Tribunal in the case of AVS

Enterprises Pvt. Ltd. Vs. Registrar of Companies, Delhi and Ors. CA (AT) No.

47 of 2021, Urvashi Infrastructure Limited Vs. Registrar of Companies, Delhi

and Haryana CA (AT) No. 28 of 2021 and Sidhant Garg and Anr. Vs. Registrar

of Companies and Ors. (2012) 171 Comp. Cas. 326.

10. In reply, Counsel for the Respondent No. 1 has referred to the

observations made and findings recorded by the Tribunal in the impugned

order and submitted that the appeal is without merit and the same deserves

to be dismissed.

11. We have heard Counsel for the parties and perused the record.

12. The Company is a juristic person, it takes birth with its incorporation

which takes place in terms of Section 7 of the Act and after incorporation and

registration, its effect has been mentioned in Section 9 of the Act. Section 248

of the Act provides the power to the Registrar to remove name of company

from register of companies for the reasons mentioned from 248(a)to(e) and

effect of the order passed under Section 248 is provided in Section 250 of the

Act. However, the remedy to an aggrieved person against the order of the

Company Appeal (AT) No. 111 of 2022 7

Registrar, passed under Section 248 is provided under Section 252 and in

Section 252(3) it is provided that the Tribunal, if satisfied that the company

at the time of its name was struck off, carrying on business or in operation or

otherwise it is just that the name of the company be restored on the register

of Companies it may pass the order that the name of the company be restored

to the register of the Companies.

13. In the present case, the Tribunal has relied upon a decision in the case

of 'Alliance Commodities Pvt. Ltd. (Supra) whereas the Appellant has brought

on record that by virtue of tripartite collaboration agreement dated

05.07.2008 between the Developer Company, Karar Ahmad and M/s Upkar

Developers to develop a project, namely, Arean the land admeasuring 36 acres

and 4 guntas was transferred to the Appellant by way of assignment

agreement dated 25.01.2020 by which the developer transferred all of its

rights, duties and obligation mentioned in clause 2.7 of the collaboration

agreement to the Appellant company for operational convenience of

implementing and marketing the project, namely, Arena which was

undertaken in pursuance to the joint development agreement dated

08.02.2007 and the memorandum of understanding dated 25.04.2008. It has

also been brought on record that the details of the projects undertaken by the

Corporate Debtor have been delineated wherein the Appellant's land being

used under the project Arena.

14. In view of this fact, it would be a hard case if the name of the company

is struck off of the Companies and it falls under 'the just or otherwise' category

even if it is not being called in operation as stated. However, it cannot be lost

Company Appeal (AT) No. 111 of 2022 8

sight of the fact that the Appellant has been remiss in its statutory obligation

which became the basis for striking off the name of the Company from the

register of the Registrar of the Companies, therefore, in the peculiar facts and

circumstances, the end of the justice would meet with the restoration of the

name of the Company to the Register of Registrar of the Companies with

imposition of fine/cost.

15. Thus, in view of the aforesaid facts and circumstances, the present

appeal is hereby allowed. However, subject to payment of Rs. 2 lakh as cost

which shall be deposited by the Appellant with the RoC within a period of 30

days from the date of passing of this order.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Mr. Naresh Salecha] Member (Technical)

New Delhi

2nd June, 2023.

Sheetal

Company Appeal (AT) No. 111 of 2022