Shubh Infraatech Private Limited vs Mr. Sameer Bansal & Ors

NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH, NEW DELHI COMPANY APPEAL (AT) No. 228 - 229 of 2020 (Arising out of Order dated 21.10.2020, passed by National Company Law Tribunal, Court III, New Delhi, in new CA-599/2020 in 1196/252/ND/2018 and modified order dated 11.11.2020 in New CA 686/2020 in 1196/252/ND/2018)

IN THE MATTER OF:

Shubh Infraatech Pvt. Ltd. Through its Director and Authorised Representative Mrs. Vishali Jain wife of Mr. Puneet Jain, At B-1/12, Vasant Vihar, New Delhi-110057. Email: vishalijain@hotmail.com ...Appellant

Versus

1. Mr. Sameer Bansal, S/o Sh. Mansingh Bansal, R/o IID-123, Ridge Wood Estate, DLF Phase IV, Gurgaon, Haryana 122009 Email: sameer@nspassociate.com ...Respondent No. 1

2. Registrar of Companies, 4th Floor, IFCI Tower, 61 Nehru Place, New Delhi-110019 Email roc.delhi@mca.gov.in ...Respondent No. 2

3. Pooja Aangan Creators Pvt. Ltd. D-3/3469, Vasant Kunj, New Delhi-110070. Email: pooja.aangan@gmail.com ...Respondent No. 3

4. Parkash Chandra Rathi S/o Sohan Lal Rathi R/o B-452A, Sushant Lok-I, Gurgaon, Haryana-122002. Email: prakash_rathi@hotmail.com ...Respondent No. 4 -2-

5. Rahul Jain, S/o Sh. Mahaveer Singh Choudhary R/o 110, Vidhut Nagar, Bhilwara, Rajasthan-311001. ...Respondent No. 5 Email: rahuljain_met@yahoo.co.in

6. A Banshal and Associates, Chartered Accountant At J-3/21, LGF, DLF City Phase -2 Gurgaon, Haryana-122002. Email: amitkanodia_ca@yahoo.co.in ...Respondent No. 6

7. Income Tax Officer/Income Tax Department, DCIT (High Court Cell), Lawyer's Chamber, Block No.1, Room Nos. 428-429, Delhi High Court, New Delhi-110019. ...Respondent No. 7

For Appellant: Ms. Devika Mohan, Mr. Himanshu Satija & Mr. Abhijeet Sinha, Advocates.

For Respondent No. 2/RoC: Mr. Avnish Singh & Ms. Pushplata Singh, Advocates for R-2/RoC.

For Respondent No. 7: Ms. Adeeba Mujahid & Mr. Puneet Rai, Sr. Standing Counsel-IT Deptt., Advocates for R-7.

For Respondent No. 1, 3 & Mr. Mansumyer Singh, Advocate for R1, 3 5: & 5.

JUDGEMENT

[Per: Shreesha Merla, Member (T)]

1. Aggrieved by the Order dated 21/10/2020 in CA - 599/2020 in

1196/252/ND/2018 as originally passed and as later modified vide Order

dated 11/11/2020 in New CA-686/2020 in 1196/252/ND/2018 passed by

the NCLT (National Company Law Tribunal, New Delhi, Court - III), 'M/s.

Shubh Infratech Private Limited' preferred this Appeal on the main ground that

the observations made in the Impugned Order against the Appellant Company Appeal (AT) No. 228 - 229 of 2020 -3-

Company, without putting the Appellant to Notice, would cause irreparable

harm to the Appellant Company.

2. By the Impugned Order, NCLT has restored the name of the Company

namely Ahuja Angan Creators Private Limited in the Register of Companies

and observed as follows:

Counsel for the applicant is present. Counsel for respondent no. 4 is present. It is prayed that appeal no. 1196 of 2018 be heard as the pleadings are complete. As per the last order the matter was fixed for early hearing. The CA is allowed. The main petition i.e. 1196 of 2018 is listed.

It is submitted by the counsel for the applicant that the company viz., Ahuja Angan Creators Pvt Ltd., was incorporated on 10.12.2012 and ending 31.03.2014 the annual returns and balance sheets were filled. Thereafter, for non-filing of the same, the name of the company was struck off from the Register of Companies on 08-08-2018 under section 248 (5) of the Companies Act 2013.

At this stage counsel for respondent no. 4 submitted that one JDA has been signed by the company in 2014 with respondent no. 6 but being struck off from the Register of Companies the company is not in a position to carry on its business. It is submitted that an amount of 5 crores has been paid to respondent no. 6 and the land which is in possession of the company is to be developed and the flats are to be delivered to the home buyers. In the circumstances, we are inclined to allow the application.

The RoC concerned is directed to restore the name of the company in the Register of Companies subject to filing of all the pending annual returns and balance sheets. The company is directed to make the compliance with the provisions of the companies Act by filing the pending annual returns and balance sheets for the period w.e.f. 2014 onwards with the RoC within 4 weeks from the date of this order and the ROC shall restore the name of the company to the Register of Companies. A fine of Rs. 20,000/- is imposed on the company, which shall be reimbursed to the Office of the RoC for incurring the expenses for the restoration of the name of the company to the Register of Companies. The applicant company is directed to file an affidavit with the RoC declaring that during the Company Appeal (AT) No. 228 - 229 of 2020 -4-

period of demonetization the accounts of the company have not been used for deposit of tainted money.

In terms of the above, appeal no. 1196 of 2018 is allowed.

(Emphasis Supplied)

3. It is the main case of the Appellant that while they have no objection to

the name of the Company namely Ahuja Angan Creators Private Limited

(hereinafter referred to as the 'Ahuja Company') being restored but their

limited grievance is only with respect to the observations made by the NCLT

with regard to 'an amount of Rs.5Crs./- has been paid to Respondent No. 6 and

the land which is in possession of the Company is to be developed and the flats

are to be delivered to the Homebuyers'.

4. The Registrar of Companies, Delhi and Haryana vide a Public Notice

dated 08/08/2018 struck off the name of 'Ahuja Company' from the Register

of Companies. 'Ahuja Company' in its Petition seeking revival of the name

added the name of the Appellant, which is the third party to the proceedings,

as a Party Respondent. It is the case of the Appellant that factual incorrect

'Claims' were made with the sole intention to mislead NCLT. Vide Order dated

12/02/2020 while taking it on record the written objections of the Appellant,

the NCLT directed to proceed Ex-Parte against Respondents 5 to 7.

5. A perusal of the matter on record shows that an early hearing

Application CA 599/2020 was listed on 21/10/2020. It is submitted by the

Appellant Counsel that there was no Notice given to the Appellant and the

matter was heard and the Order was passed relying upon the following

submissions of the Respondent Company:-

 That an amount of Rs.5Crs./- has been paid to the Appellant as per the

Joint Development Agreement.

Company Appeal (AT) No. 228 - 229 of 2020 -5-

 The land which is to be developed as per the JDA is in possession of

'Ahuja Company'.

 Possession of the flats have to be handed over to the Flat Buyers.

6. Learned Counsel for the Appellant submitted that as per Clause 7.1 of

the JDA filed here, 'Ahuja Company' was to complete the development on the

said land within a period of 48 months i.e., by 08/05/2018. Further, as per

the said Clause, the Appellant was entitled to a sum of Rs.15 Lakhs/- per

month as damages for any delay. Clause 11 of the JDA enumerates that

'Ahuja Company' shall paid an amount of Rs.5Crs/- as an interest free

Security Deposit to the Appellant Company and that Clause 2.7 clearly states

that the legal and physical possession of the Project land shall always remain

with the Appellant Company.

7. As against this argument, Learned Counsel for the Respondent Nos. 1,

3 & 5 submits that the Appellant does not have any locus standi to file this

Appeal; and that is should be the Court's endeavour to support the revival of

the Company and 'justness' should be from the perspective of the society as

a whole as laid down by the Hon'ble Delhi High Court in 'Siddhant Garg' Vs.

'Registrar of Companies' (2012) SCC OnLine Del 802. It is also the case of

the Respondent that no harm would be caused to the Appellant Company and

that it would not have any bearing on the rights of the Appellant.

8. Having regard to the facts and circumstances of the attendant case on

hand, we do not find it a fit case to delve deep into the merits of the matter

regarding terms and conditions of the JDA, the possession of the land or

otherwise but simply decide as to whether the observations made by the NCLT

regarding the submissions made by the Applicant (in aforenoted para 3) be

expunged. The fact remains that there was a JDA between the parties and we Company Appeal (AT) No. 228 - 229 of 2020 -6-

do find force in the contention of the Appellant that these statements may

cause harm, if used in any collateral proceedings. We are also conscious of

the fact that RoC did not prefer any Appeal and that the Appellant Counsel

has categorically stated that they do not have any objection to the name of

the 'Ahuja Company' being restored in the Register of Companies. There is no

rebuttal by the Respondent with respect to the contention of the Appellant

that they were not put to Notice or heard on that particular date as the matter

was taken up allowing the early hearing Application.

9. For all the forgoing reasons this Appeal by the Appellant Company is

disposed of only with respect to modification of the Order Impugned

expunging the following:

It is submitted that an amount of 5 crores has been paid to respondent no. 6 and the land which is in possession of the company is to be developed and the flats are to be delivered to the home buyers.

(Emphasis Supplied)

10. The Registry is directed to upload the Judgement on the website of this

Tribunal and send a copy of this Judgement to NCLT (National Company Law

Tribunal, New Delhi) forthwith.

[Justice Anant Bijay Singh] Member (Judicial)

[Ms Shreesha Merla] Member (Technical) New Delhi 04th April, 2022

himanshu

Company Appeal (AT) No. 228 - 229 of 2020