- (1.) The present Company Application bearing No. 263/252/HDB/2017 is filed by Jaiprakash Swain 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 directions to Registrar of Companies (R-2) for restoration of the name of the Respondent No.l in the Register of Companies, to place the 1st Respondent Company and all other persons in the 1st Respondent Company such as Shareholders, Employees and all other related to the Company in the same position as nearly as may be as if the name of the Company had not been struck off from the Register of Companies etc.
(2.) Brief facts, leading to filing of the present Company Application, are as under: JUDGEMENT_292_LAWS(NCLT)2_2018_1.html JUDGEMENT_292_LAWS(NCLT)2_2018_2.html (1) SATCOM & DIGITAL SOLUTIONS PRIVATE LIMITED (hereinafter referred to as the Company) was incorporated under the Companies Act on 28th May, 2013 as a Private Limited Company with the Registrar of Companies, Hyderabad having its registered office at the address shown in the cause title of this application. The Company is in the business of designing, developing, implementation, exploring, consultancy, ideas/concept selling, import and export, training in software technologies and hardware as permitted by Law. (2) The Authorized Share Capital of the 1st Respondent Company is Rs. 1,00,000/- (Rupees One Lakh only) divided into 10,000 (Ten Thousand) Equity Shares of Rs.10/- (Rupees Ten only) each. The Issued, Subscribed and Paid-up Share Capital of the 1st Respondent Company is Rs. 1,00,000/- (Rupees One Lakh only) divided into 10,000 (Ten Thousand) Equity Shares of Rs.10/- (Rupees Ten only) each. (3) The 1st Respondent Company is having Two Shareholders as on the date of this Application. Both the Applicants are promoter shareholders. The shareholders are filing this Company application to protect their interest as shareholders as well as the interest of the Company and its stake holders. The said shareholders are nothing but the existing Directors. The details of Directors as per the Master data maintained by the Ministry of Corporate Affairs including their date of appointment and DIN numbers as on the date of this Application are furnished hereunder: (4) It is submitted that, the 1st Respondent Company-is carrying out its business successfully from the date of its incorporation and is conducting the Meetings of Board of Directors as well as General Meetings regularly in Compliance with the provisions of the Companies Act, 1956 as well as the provisions of Companies Act, 2013 whichever is in force at the relevant period. The Company has filed its Income Tax Returns for the Assessment Years 2014-15 and 2015-16 and 2016-17 as well. The Directors thought that they can file the Annual Returns and Financial Statements for the year 2013-14, 2014-15 and 2015-16 with additional fee as contemplated under Section 92, 137 read with Section 403 of the Companies Act, 2013 otherwise there is no intentional cause for such non-filing. (5) It is submitted that the 1st Respondent Company has held its Annual General Meetings for the Financial Years ended 31st March 2014, 31st March 2015 and 31st March 2016 on 30.09.2014, 30.09.2015 and 30.09.2016 respectively. (6) It is submitted that the 1st Respondent Company has earned a revenue of Rs.50,19,414/- (Fifty-Lakh Nineteen Thousand Four Hundred and Fourteen Rupees Only) , Rs.78,86,418/- (Seventy Eight Lakh Eighty Six Thousand Four Hundred and Eighteen Rupees Only) and Rs.36,82,352/-(Thirty Six Lakhs Eighty Two Thousand Three Hundred and Fifty Two Rupees Only) during the financial years 2013-14, 2014-2015 and 2015-2016 respectively. (7) The Balance Sheet showing the Assets and Liabilities of the 1st Respondent Company as on 31.03.2014, 31.03.2015 and 31.03.2016 is furnished hereunder: TABLE NOT FOUND (8) It is further submitted that none of the Creditors/Shareholders or any person/persons or any Body Corporate at large will be prejudiced if the name of the Company is restored in the Register of Companies maintained by the Registrar of Companies. (9) It is submitted that the company is earning from its operations. The Company has entered into business agreements. Moreover, if the Company's name is not restored, there is an irreparable loss caused to the applicant company, stake holders including employees, Customers, workers, suppliers and their families. (10) The Company is paying its Income Tax and filing the returns. The details of Income tax paid for Two years are furnished hereunder: It is further submitted that the Annual Accounts and Annual Returns to be filed with ROC for the above three financial years have been scanned in PDF format and are ready to file. Upon granting of the prayers stated in this application, the applicant shall be able to complete its Annual Filings for the Financial Years 2013-14, 2014-15 and 2015-16 within one month of the name being restored in the Register of Companies maintained by the ROC. (11) ROC has struck off the name of the Applicant Company from the Register of Companies which fact has come to the notice of the Applicant during lstweek of September, 2017 when tried to file the Annual Returns and Financial Statements for the years 2013-14, 2014-15 and 2015-16 with additional fee as contemplated under Sections 92 and 137 read with Section 403 of the Companies Act, 2013. (12) It is further submitted by the Learned Counsel for the Applicants that prior to strike off the name of the company through a public notice, in Form STK-7, ROC should have followed a due procedure and process such as issuing of notice in Form STK-1 which notices have to be served on the addresses of the Board of Directors of the Company through Registered Post with Acknowledgement due or Speed Post. None of the Directors including the Company have received the notices in any mode of dispatch stipulated under Rule 3(1) and 3(2) of Companies (Removal of names of Companies from the Register of Companies) Rules, 2016 read with Section 248(1) of the Companies Act, 2013. Therefore the Registrar of Companies/Respondent has not followed the due procedure laid down in the statute. Therefore, striking off the company from the register by merely displaying a notice in Form STK-5 and Form STK-7 will defy the Constitutional Rights available under various statutes to the Applicant as well as the Shareholders. (13) Before striking off the name of the Company under Sub Section (1) , (4) and (5) of Section 248 of the Companies Act, 2013, ROC shall have been followed the stipulated procedure as under: (i) ROC shall have issued Notice in Form No.STK-1 to all the Directors by Registered Post with acknowledgement due or by Speed Post. The Directors have not received any such notice. (ii) The Company came to know about issue of Public Notice by ROC in Form STK-5 and Form STK-7 only when it was trying to file the Annual Accounts as well as Annual Returns pertains to the years 2014-15 and 2015-16 during the month of September 2017.The portal of MCA was not allowing the company to file the returns. Thereafter, upon enquiry, it has come to the knowledge of the Company and its directors that ROC has issued a Public Notice in Form No.STK-5 which was displayed in the portal maintained by the Ministry of Corporate Affairs vide Public Notice No. 1 dated:28.04.2017. It is understood that ROC have strike off the name of the Company from the register by publication in the Gazette with regard to dissolution in Form STK-7 dated 17th July 2017 and the same is placed on the official website of the Ministry of Corporate Affairs. (iii) The master data of the Company maintained in the website of MCA has shown that the Company is strike off. (14) The Company has to file the returns for the financial years 2013-14, 2014-15 and 2015-16. The Company is profit making company having assets and liabilities which is paying the income tax also. (15) The Company has not deposited any extra money during demonetization of Rs. 500/- and Rs. 1000/- notes in its bank Accounts after 07th November 2016 except the routine money of the business transactions from time to time as permitted under Banking Regulations. (16) The Directors of the Company are not disqualified as per the lists displayed in the portal of Ministry of Corporate Affairs. However, the Directors are deemed to have been disqualified under the provisions of 164(2) (a) of the Companies Act, 2013. (17) The Bank Accounts of the Company have been freezed from transactions which act of the Banks is affecting the business of the Company. (18) In addition to the above, as per sub section 6 of Section 248 of the Companies Act, 2013, the ROC, before passing an order under sub section 5, shall satisfy himself that sufficient provision has been made for the realization of all amounts 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 the Directors or other persons in charge of the management of the Company. Thus, the ROC has decided hastily and struck off the name of the Company overnight. The order of ROC is discriminative and is against the principles of natural justice and prejudicial to the interest of shareholders and stakeholders of the company. (19) It is submitted that the Company has been carrying the business at the time of its name struck off, carrying on business operations as explained and therefore, it is just that the name of the Applicant Company be restored to the Register of Companies by setting aside the order of the Respondent.
(3.) Heard Shri V. Venkata Rami Reddy, Learned Counsel for the Applicant Company.;