Sudeshgupta Shareholder & Director Of ... vs Registrar Of Companies & Anr

[Arising out of order dated 05.10.2020 passed by the National Company Law Tribunal (New Delhi, Bench-II) in Appeal No. 549/252(ND)/2019]

IN THE MATTER OF: Sudesh Gupta Shareholder & Director of the Company 32B, Pocket-F, Mayur Vihar Phase-II, New Delhi-110091. E-mail: akm2400@gmail.com Mobile: 9810836690. ....... Appellant. Versus 1. Registrar of Companies, NCT of Delhi & Haryana 4th Floor, IFCI Tower, 61 Nehru Place, New Delhi-110019 Mail ID- roc.delhi@mca.gov.in ...... Respondent No. 1. 2. Income Tax Department, Dept of Revenue, GOI Principal Commissioner of Income Tax, CR Building, ITO, New Delhi-110002 Mail ID- delhi.dcit.judicial.hc@incometax.gov.in OR, Alternative Address, DCIT (High Court Cell), Room No. 428 &429, Delhi High Court, New Delhi-110003. ....... Respondent No. 2. Present: For Appellant: Mr. Iswar Mohapatra, Advocate. For Respondent:- None. 2

JUDGMENT

(04th May, 2023)

Justice Anant Bijay Singh;

The present Appeal under Section 421 of the Companies Act, 2013, has

been filed by the Appellant being aggrieved and dissatisfied by the order dated

05.10.2020 passed by the National Company Law Tribunal (New Delhi, Bench-

II) in Appeal No. 549/252(ND)/2019 whereby and whereunder appeal filed by

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

maintained by the Registrar of Companies (RoC), NCT of Delhi and Haryana was

dismissed by the Tribunal.

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

i) The Appellant Company, M/s Choice Automobiles Private Limited was

incorporated on 05.05.2000 with its registered office at 32-B, Pocket-F, Mayur

Vihar Phase, Delhi-110091 having CIN No. U50300DL2000PTC105551. The

Appellant Company is involved in the business of automobiles and as per the

main objects as mentioned in its MoA, the Appellant Company carry the following

activities:

"To carry on the business as importers, exporters, traders, buyer,

sellers, suppliers, indenters, agents, sub agents, jobbers, brokers,

repairers, cleaners or otherwise deal in all kinds and classes of

component parts, replacement parts, spare parts, accessories,

tools, implements, fittings inclusive of all types of axles, prop

sellers, shafts and universal joints, ornamentation and decorative

Company Appeal (AT) No. 218 of 2020 3

parts for motors, vehicles, trucks, tractors, motor-cycles, cycle

cars, cycle, scooters, buses, omnibuses, of every description and

vehicles and products of all descriptions whether propelled or

used by means of patrol, spirit, steam, oil vapor, gas, coal,

electricity, petroleum, atoms or any other motive or mechanical

power."

ii) The Registrar of Companies, NCT of Delhi & Haryana i.e. the Respondent

No. 1 herein, struck off the company's name i.e. M/s Choice Automobiles Private

Limited from the Register of Companies due to the reason that the Company is

not carrying on any business or operation for two immediately 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 and Registrar of Companies vide Notice No. -

ROC/DELHI/248(5)/STK-7/4865 dated 8th day of August, 2018 struck off the

name of the Company. The name of the Company is appearing in serial no. 4399

of the public notice dated 8th August, 2018. Thereafter, the Appellant filed appeal

against the order of Registrar of Companies for restoration of name of the

Company under Section 252 of the Companies Act, 2013 and after hearing both

the parties, the Tribunal passed the order impugned dated 05.10.2020 which led

to filing of this Appeal.

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

his written submissions submitted that the impugned order completely ignores

the provision of Section 252(2) of the Companies Act, 2013 which prescribes 3

Company Appeal (AT) No. 218 of 2020 4

(Three) conditions which are required to be satisfied before exercising jurisdiction

for restoration by Tribunal:

a) the company was, at the time of its name being struck off, carrying on

business or

b) in operation or

c) otherwise it is just that the name of the company be restored to the register

of companies.

4. It is further submitted that the Company has Commercial Property bearing

Plot No. B-235, Sector 16, Noida which was allotted by New Okhla Industrial

Development Authority (NOIDA) for the purpose of Auto Parts Shop Repair

Workshop & Motor Garage and the present market value of the land and Building

is around Rs. 1,60,00,000/-. The Tribunal failed to appreciate that the Company

is in operation at the time of struck off by ROC as the Company was paying

electricity bill regularly. Electricity bill from July, 2017 to September, 2020 is

enclosed to prove that the company was in operation. Further, the Tribunal in

several instances allowed appeal to restoring the name of the company struck

off by ROC on the just and equitable ground if the company has immovable

property. The referred cases are:

a) Culcatta Rubber Factory Pvt. Ltd. & Ors. Vs. Registrar of

Companies, Delhi & Haryana in Company Appeal (AT) No. 177/2019

reported in 2019 SCC Online NCLAT 851;

b) Basant Kumar Berlia & Ors. Vs. Registrar of Companies, West

Bangal in Appeal (AT) No. 171/2018.

Company Appeal (AT) No. 218 of 2020 5

c) M/s Insys Instruments Systems (India) Pvt. Ltd. Vs. Registrar of

Companies (Karnataka) in Appeal (AT) No. 231/2018.

5. It is further submitted that the NCLT failed to appreciate that when the

company has commercial property, restoration of the company ought to have

been allowed on the ground of just and equitable, one of the grounds specified

in Section 252(3) of the Companies Act, 2013 in the interest of justice. The other

way the restoration of the company ought to have been allowed on the ground

that the company is in operation as it is paying electricity bills at the time of

struck off of the company.

6. It is further submitted that Respondent No. 1 has made wrong observation

on the basis of order made by the Tribunal dated 05.10.2020 in relation to fact

that the company have no immovable property in its name which is totally false

and unjustified because the company has enclosed property paper with the

appeal filed before NCLT under Section 252 of the Act which is enclosed at pate

114 to 131 of the appeal before this Tribunal. Further, the NCLT in para 6 of the

impugned order recorded that the company has immovable property, so

averment of Respondent No. 1 is entirely false and meaningless.

7. On the other hand, the Ld. Counsel for the Respondent No. 1/Registrar of

Companies in his Reply it is stated that as per the available records on MCA 21

Portal, the Appellant Company - Choice Automobiles Private Limited was

incorporated on 05.05.2000 under the provisions of Companies Act, 1956.

Further, as per records, the last Directors of the Appellant Company were i)

Sudesh Gupta, ii) Promila Mittal. The Appellant Company has filed its Financial

Company Appeal (AT) No. 218 of 2020 6

Statements till financial year 31.03.2015, due to which the Respondent No. 1

had reasonable cause to believe that the Appellant Company was not in

operation and in terms of provision of Section 248(1) Notice was sent to the

Appellant company and also to its directors by invoking the provisions of Section

20 of the Act. The Appellant company has been issued STK-1 in May, 2018.

Further, in terms of Section 248(4) of the Act, public notices in form STK-5 were

issued to 31,250 Companies including the Appellant Company by making

publication in official gazette on 18.06.2018 and these notices have also been

places on the website of Ministry of Corporate Affairs.

8. It is further stated that pursuant to sub-Section (5) of Section 248 of the

Act, and Rule 9 of the Companies (Removal of Names of Companies from the

Register of Companies) Rules, 2016, after expiry of time as mentioned in notice

published/sent and non-receipt of any objection from the company/directors,

Dissolution in form STK-7 having effect from 08.08.2018 was published on the

website of Ministry of Corporate Affairs on 08.08.2018. The Balance Sheets

annexed by the Appellants for the Financial Year from 2015-16 to 2017-18

indicate 'nil' revenue generations from its operations.

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

of the parties, we observe that the Company has Commercial Property bearing

Plot No. B-235, Sector 16, Noida which was allotted by New Okhla Industrial

Development Authority (NOIDA) for the purpose of Auto Parts Shop Repair

Workshop & Motor Garage and the Company was paying electricity bill regularly

from July, 2017 to September, 2020. Further, the Respondent No. 1/Registrar

Company Appeal (AT) No. 218 of 2020 7

of Companies in his reply before the NCLT has stated that it has no objection if

the name of the Company is restored on proving by the Company that it was

carrying on business or was in operation and the Company be also directed to

file financial statements up to date with appropriate filing and additional fees.

Keeping in view of the above facts, the Appellant Company is having substantial

movable as well as immovable assets, therefore, it cannot be said that the

Appellant Company is not carrying on any business or operations. Hence, we are

of the view that the order passed by the National Company Law Tribunal (New

Delhi, Bench-II) as well as Registrar of Companies, NCT of Delhi & Haryana is

not sustainable in law.

10. In view of the aforenoted, we set aside the impugned order dated

05.10.2020 passed by the National Company Law Tribunal (New Delhi, Bench-

II) in Appeal No. 549/252(ND)/2019. The name of the Company be restored to

the Register of Companies subject to the following compliances.

i) Appellant Company shall pay costs of Rs. 4,00,000/- (Rupees

Four Lakhs) to the Registrar of Companies, NCT of Delhi &

Haryana within eight (8) weeks from the passing of this

Judgment.

ii) After restoration of the Company's name in the Register

maintained by the Registrar of Companies, the Company shall

file all their Annual Returns and Balance Sheets. The Company

shall also pay requisite charges/fee as well as late fee/charges

as applicable.

Company Appeal (AT) No. 218 of 2020 8

iii) Inspite of present orders, Registrar of Companies will be free to

take any other steps punitive or otherwise under the

Companies Act, 2013 for non-filing/late filing of statutory

returns/documents against the Company and Directors.

The instant Appeal is allowed to the above extent.

11. 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 (New

Delhi, Bench-II), forthwith.

[Justice Anant Bijay Singh] Member (Judicial)

[Naresh Salecha] Member (Technical)

New Delhi 04th May, 2023 Ram Nath.

Company Appeal (AT) No. 218 of 2020