Rajeswara Rao Vittanala, Member - (1.) The present Company Application bearing CA NO.22/252/HDB/2018 is filed by Biyyala Dayakar Rao and 01 Another under Section 252(3) of the Companies Act, 2013, Read with National Company Law Tribunal Rules, 2016 and Read with Rule - 87A of the National Company Law Tribunal (Amendment) Rules, 2017 by inter-alia seeking to set aside the order of the Respondent-2 with regard to striking off the name of the Respondent No. 1 Company from the register of companies; restoring name of the Respondent No. 1 Company etc.
(2.) Brief facts, leading to filing of the present Company Application, are as under: (a) Yamini Films Private Limited (hereinafter referred to as 'the Company') was incorporated under the Companies Act, 1956, on 17th August 2004, as a private limited company, with the Registrar of Companies, having the Registered Office at Flat 402, Vishnu Elite, Gurumuthy Lane, Begumpet, Hyderabad - 500016. The Company is established to carry on the business of production, distribution and exhibition of films. (b) The Authorized Share Capital of the First Respondent is Rs. 10,00,000/- (Rupees ten lakh only) , divided into 10,000 (Ten thousand) equity shares of Rs.100/-(Rupees one hundred only) each. The Issued, Subscribed and Paid-up Share Capital of the First Respondent is Rs. 1,05,000/- (Rupees one lakh and five thousand only) , divided into 1,050 (One thousand and fifty) equity shares of Rs.100/- (Rupees one hundred only) . (c) The First Respondent is having 2 (two) shareholders as on the date of this application. The Applicants are the shareholders and are having 100% (One hundred percent) shareholding as per details given below: No. JUDGEMENT_75_LAWS(NCLT)2_2018_1.html (d) The First Respondent is having four Directors as on the date of application, as per details given below:- JUDGEMENT_75_LAWS(NCLT)2_2018_2.html (e) It is submitted that the First Respondent has held its Annual General Meetings for the Financial Years ended 31st March 2015, 31st March 2016 and 31st March 2017 on 30th September 2015, 30th September 2016 and 29th September 2017, respectively. (f) The Audited Financial Statements of the First Respondent, comprising of Auditors' Report, Balance Sheet, Profit 8b Loss Statement, and Notes thereto for the Financial Years 2014-15 and 2015-16 are annexed as Annexure D to the Company Application, (g) The First Respondent has entered into various agreements with other parties and the same are valid and subsisting as on date. These agreements have material impact on the business of the Company. (h) It is further submitted that none of the creditor(s) / shareholder(s) / or any person(s) or anybody corporate(s) at large will be prejudiced if the name of the First Respondent is restored in the Register of Companies maintained by the Second Respondent. It is further submitted that if the First Respondent's name is not restored, there is an irreparable loss caused to all stakeholders, shareholders, employees and customers including their families since the First Respondent is in the business of production, distribution and exhibition of films with prudent business practices. (i) It is further submitted that the Annual Reports and Annual Returns pertaining to the Financial Years 2014-15, 2015-16 and 2016-17 only are to be filed. The First Respondent shall be able to file these upon granting of prayers stated in this application and when the name is restored in the Register of Companies which is maintained by the Second Respondent. (j) It is submitted that ROC has struck off the name of the First Respondent from the Register of Companies, which fact has been come to notice of the Applicants during first week of October 2017 when they were trying to file the Annual Reports and the Annual Returns for the Financial Years 2014-15, 2015-16 and 2016-17 with additional fee as contemplated under Sections 92 and 137 read with Section 403 of the Companies Act, 2013. Prior to striking off of the name of the First Respondent through a public notice, in Form STK-7, ROC should have followed due procedure and process of issuing notice, in Form STK-1, which ought to have been served on the addresses of the Directors of the First Respondent through registered post with acknowledgement due or speed post. None of the Directors including the First Respondent have received the notice in any mode of despatch stipulated under Rules 3(1) and 3(2) of the Companies (Removal of Name of Companies from the Register of Companies) Rules, 2016, read with Section 248(1) of the Companies Act, 2013. ROC ought to have proceeded further only upon ensuring delivery of proper notice through proper mode. Therefore, striking off of name of the First Respondent from the Register of Companies by merely displaying notices in Form STK-5 and Form STK-7 will defy constitutional rights available under various statutes to the Applicants as shareholders and to the First Respondent as legal entity. (k) It is further submitted that before striking off of the name of the First Respondent under Sections 248(1) , 248(4) and 248(5) of the Companies Act, 2013, ROC ought to have followed the procedure stipulated therein. The First Respondent came to know about issue of public notices by the Second Respondent in Form STK-5 and Form STK-7 only when it was trying to file annual reports and annual returns for the Financial Years 2014-15, 2015-16 and 2016-17 during first week of October 2017 and upon MCA Portal not allowing the First Respondent to file the above documents. Thereafter, upon enquiry, it has come to the knowledge of the First Respondent that the Second Respondent has issued a public notice in Form STK-5, which was displayed in the Portal maintained by the Ministry of Corporate Affairs ('MCA') . It has also come to the knowledge that the Second Respondent has struck off the name of the First Respondent from the Register of Companies by publication in the Gazette with regard to dissolution in Form STK-7, which was also displayed in MCA Portal. The Company Master Data of the First Respondent maintained on MCA Portal also shows the filing status as 'Strike Off. (l) The First Respondent is having assets and liabilities and is also having valid and subsisting agreements entered with other parties. (m) It is further submitted that in addition to the above, as per Section 248(6) of the Companies Act, 2013, the Second Respondent, before passing an order under Section 248(5) , shall satisfy himself that sufficient provision has been made for the realization of all amount due to the Company and for the payment or discharge of its liabilities and obligations by the Company within a reasonable time and, if necessary, obtain necessary undertakings from managing director, director or other persons in charge of the management of the company. (n) The First Applicant was disqualified to act as director under Section 164(2) of the Companies Act, 2013, which was also displayed in MCA Portal showing DIN Approval Status as 'Disqualified by RoC u/s 164(2) . (o) It is therefore submitted that the Second Respondent has acted mechanically, without application of reasonable mind, decided hastily and without following the prescribed procedure for strike off of the name of the First Respondent. The orders of the Second Respondent are discriminative and against the principles of natural justice and prejudicial to the interest of the Applicants and other stakeholders of the First Respondent. . (p) In view of the above cited facts, the First Respondent is facing substantial hardship. Since the Company is having assets and liabilities, this application has been filed under Section 252(3) of the Companies Act, 2013, seeking restoration of name of the First Respondent in the Register of Companies maintained by the Second Respondent. (q) It is submitted that the First Respondent was carrying the business at the time of its name being struck off, as explained supra and therefore it is just that the name of the First Respondent be restored to the Register of Companies. (r) It is further stated that the First Respondent has not i deposited any extra money during demonetization of Rs.500/- and Rs. 1,000/- notes in bank accounts during the period from 8th November 2016 to 31st December 2016, except routine money from business transactions from time to time. (s) It is prayed that all pending documents, comprising of Annual Reports and Annual Returns, will be filed by the First Respondent with fee and additional fee as prescribed under the provisions of the Companies Act, 2013, as soon as the name is restored in the Register of Companies. The Applicants will ensure that in future the First Respondent will comply with the applicable statutory provisions of the Companies Act, 2013, without any delay. (t) The Applicants, being the Promoter Shareholders, will appoint required number of directors, in place of disqualified director(s) , as soon as name of the First Respondent is restored in the Register of Companies, who shall hold office till the directors are appointed by the First Respondent in the General Meeting as permitted under Section 167(3) of the Companies Act, 2013. (u) It is further submitted that the Bank Accounts of the First Respondent have been frozen and the same is affecting the business operations of the First Respondent.
(3.) Heard Shri Gopinath Surey, Learned PCS for the Applicants and Shri R.C. Mishra, Registrar of Companies.;