Deepa Krishan, Member - (1.) M/S G.S.C Industries Private Limited had filed an application u/s 560(6) of the Companies Act, 1956, before the Hon'ble High Court of Delhi on 15.07.2016 seeking restoration of the name of the petitioner company on the Register of Companies maintained by the office of the ROC, NCT of Delhi and Haryana. Subsequently, vide Hon'ble High Court Delhi's Order dated 09.02.2017 in terms of the notification Regd. No. D.L.-33004/99 dated 07.12.2016, issued by the Ministry of Corporate Affairs and in particular, Clause 3 thereof, the present petition under Section 560(6) of the Companies Act 1956, stands transferred to the Principal Bench, National Company Law Tribunal, New Delhi.
(2.) Facts in brief necessary for disposal of the controversy raised in the petition are that the petitioner-company was incorporated under the provisions of Companies Act, 1913 on 15.02.1956 with the office of the Registrar of Companies, NCT of Delhi & Haryana at New Delhi, Vide CIN No. U92114DL1956PTC002612, with its registered office at Palace Cinema Building, 20, Roshanara Road, Delhi-110007. The authorised share capital of the company was Rs.10,00,000 /- divided into 10,000 equity shares of Rs.10.0/- each. The issued, subscribed and paid up capital of the company was Rs. 10,00,000/- divided into 10,0000 equity shares of Rs.10/- each. The company is engaged in the business of producers, exhibitors, distributors, importers, exporters, manufacturer, financiers, repairers, buyers, sellers or otherwise dealers in cinematograph films, talkies and silent, machines and other equipment's, slides, film projectors, gramophone records, sound recording, equipment's and radio and television equipment, and other such education, institutional and other constructive films or in other entertainment material. 2.1 The ROC-respondent struck off the name of the petitioner company from the Register of Companies on account of default in statutory compliances. The name of the petitioner-company was struck vide order no, ROC/Delhi/560(5)/SM/260 dated 31st May 2007 pursuant to which a notification was issued in the Gazette of India, dated 23rd June, 2007 in which petitioner company's name was shown at serial no. 4213 (a copy of the Gazette notification has been filed along with the petition) as Annexure P-2. The claim of the petitioner is that the M/s G.S.C Industries Pvt. Ltd is active since its inception. It has prepared its Balance Sheet and Profit and Loss Account and that it has been filing the same with the ROC upto 31.03.1999. In Para 9 of the petition it is stated that "it had been carrying on its building the business of running a cinema hall under the name and style of "PALACE" continuously without any interruption till 2002. However, with the onset of multiplexes and change in market conditions - the cinema was faced with dwindling demand and in view of major renovations required - the business of the cinema was in abeyance. During the period of abeyance, the Petitioner was unable to file /electronically upload the documentation as required by the Registrar from time to time on account of being short-staffed and absence of professional help. However, the promoters / directors with a renewed vigour have now decided to restore the cinema to its old glory and are thereby requesting to restore the company's name on the Register of the Companies maintained by the Registrar of Companies. If the name of the Petitioner Company is not restored, Petitioners would suffer irreparable loss and injury which cannot be compensated otherwise. The Petitioner Company has been maintaining and preparing all requisite documents as per the provisions of Companies Act, 1956 along with Companies Act, 2013 applicable to it but due to operations being in abeyance and non-presence of staff, the documents could not be filed with the office of Registrar of Companies, NCT of Delhi & Haryana and this promoter/owner were unaware of the technicality and intricacies of such compliance". 2.2 It is further stated that the petitioners came to know in January 2016 from the practising company Secretary regarding striking off the name of the Company when he was doing the inspection of company's record on MCA Portal. It has also been submitted that they did not receive any show-cause notice from the respondents in terms of section 560(1) & (2) of the Companies Act, 1956. It is asserted that from a perusal of Gazette notification it is evident that the action to strike off the name of the petitioner company from the Register of Company maintained by the office of ROC, was taken "in a mechanical manner without application of proper mind". The prayers made in the application are as follows: - (I) "Pass an order for the restoration of the Name of the Petitioner Company- G S C Industries Private Limited on the Register of Companies maintained by the office of Registrar of Companies, NCT of Delhi & Haryana at New Delhi, (ii) Pass order/directions to the Registrar of Companies, NCT of Delhi & Haryana for placing the Petitioner Company its Management and Board of Directors in the same position as nearly as may be as if the name of the Company had not been struck off. (iii) Direct the office of the Registrar of Companies to accept the Annual Return and Audited Balance Sheet from the date of non-submission to 2014 and Audited Balance Sheets and Profit & Loss account up to current financial years for which it was not filed. (iv) Direct the office of the Registrar of Companies, NCT of Delhi & Haryana at New Delhi, to allow the Petitioner Company to file the certified copy of the order of this Hon'ble High Court, without Filing Form No INC 28 as technically e-filing is not possible for the petitioner company because its name has been struck off arbitrarily. (v) Pass such other order / directions as this Hon'ble Court may deem fit in the circumstances of the present Petition". 2.3 The company petition for restoration of name of the company has been signed by Shri Harinder Singh Bedi, Director and is accompanied by his affidavit and also those of the other Directors, namely, Shri Ashok Kumar, Shri Harpreet Singh Chawla, Shri Ajeet Singh Chawla and Shri Harkirat Singh Sodhi. A copy of the Board Resolution passed by the Board of Directors on 25.01.2016 authorising Mr. Harinder Singh Bedi to commence legal proceedings reads as follows "resolved that Mr. Harinder Singh Bedi, Director of the company be and is hereby authorized to commence, prosecute, enforce, defend, answer or oppose all actions, legal proceedings before the Hon'ble Delhi High Court or any other appropriate court for the restoration of name of the company under Section 560(6) of the Companies Act, 1956 and file application for review, revision or otherwise as he may think fit". This has been enclosed with the application as Annexure P-3. 2.4 The Memorandum of Association of the Petitioner Company has also been enclosed and the names of original subscribers are Shri Gurmukh Singh Chawla S/o Surinder Sodhi and Mrs. Maheshinder Singh Sodhi W/o Surinder Sodhi. 2.5 Along with the petition, audited balance sheet for the year ending 31st March, 2014 and 31st March, 2015 have also been filed as Annexure P- 4. A list of Directors of the Petitioner Company has also been disclosed (A-5). It is seen that all these Directors have been appointed on 29.09.1998 and in view of the affidavits filed by these Directors as quoted in para-6 above, it is apparent that they continued as Directors on the date of filing the petition. No information has been given regarding the founding subscribers or the Directors of the company before the appointment of these persons as Directors on 29.09.1998.
(3.) It is pertinent to note here that on 04.09.2017 the petitioner has filed copies of annual returns of petitioner company pertaining to financial year from 1999-2000 to 2015-16. A perusal of the same shows that these are not copies of annual returns but only copies of audited balance sheets of the petitioner company for this period. The same have not been accompanied by any affidavit. 3.1 It is also seen that both in the petition filed on 15.07.2016 as well as the rejoinder filed before us on 19.07.2016, it is stated that "the petitioner had been carrying on its business of running a cinema hall under the name and style of "PALACE" continuously without any interruption till 2002". There is no statement or averment regarding any subsequent business being run after 2002. This shows that the petitioner company was not running any business on the date of being struck off by the ROC i.e. 23rd June, 2007.;