TaxTMI 
TaxTMI 
2019 (12) TMI 243
X X X X Extracts X X X X
X X X X Extracts X X X X
....propriate order under Section 252( 1) of the Companies Act, 2013, to bring an end to status of strike off of company in the matter, i.e. Vs. J. R. Diamonds Pvt. Ltd. to allow exemption to file annual returns required to be fled and to pay "ting fees thereon for the year 2014 to 2018. (iii) To pass the order to bank informing the revival of company and restoration of company's name in the Registrar of Companies to make the bank account 2. The brief facts raising to the present appeal are stated as under: M/S. J. R. Diamonds Pvt. Ltd. was originally incorporated on 08.11.1977 as a Private Limited Company, limited by shares in the name of M/S. J. R. Diamonds Pvt. Ltd. The company was incorporated vide Corporate Identity Number (CIN): U36912GJ1977PTC072127 under the provisions of the Companies Act, 1956. As submitted, the Director of the company are Mr. Shailesh Babulal Shah (DIN: 00337018) since 05.03.2010 and Mr. Dharmendra Shambhubhai Ruparelia (DIN: 05242889) since 27.07.2016. 3. The Company was having authorized share capital of Rs. 25,00,000/- (Rupees Twenty-Five Lakhs Only) divided in to 2,50,000/- (Two Lakh Fifty Thousand) equity shares of Rs. 10/- (....
X X X X Extracts X X X X
X X X X Extracts X X X X
....egistrar of the Companies, Gujarat, Ahmedabad vide its notice no. ROC/AHMD/248(5)/STK-7/PUB/1/2018 dated 06.08.2018 (issued in Form No. STK-7) (followed by a final notice issued under sub-section (5) of Section 248 of the Companies Act, 2013), has struck off the name of the Company from its register with effect from 06.08.2018 mainly on such reason that the Company failed in filing its Financial Statements & Statutory Annual Returns from F.Y. 2013-14 onwards and Annual Returns from F.Y. 2014-15 onwards With the Respondent ROC under the provision of Companies Act within prescribed period to the ROC, Gujarat. 10. It is contended that the reoponclent, ROC did not follow the procedure prescribed under Section 248(1) of the Companies Act, 2013 and no statutory notice under Section 248 (I) was received by the Liquidator of the company. It is stated that the Respondent ROC has got published the notification in the official gazette for striking off the name of the company. 11. A copy of relevant extract/ page of the Gazette Notification, showing notice to strike off companies name under Section 248(1) in STK-5 and further intimation of striking off the name of company under Section 2....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... to seek restoration of the company's name in the register of the ROC. 16. We further examined the relevant provisions of Section 252(1) and 252(3) of the Companies Act which reads as under: Any person aggrieved by an order of the Registrar, notifying a company as dissolved under section 248, may file an appeal to the Tribunal within a period of three years from the date of the order of the Registrar and if the Tribunal is of the opinion that the removal of the name of the company from the register of companies is not justified in view of the absence of any of the grounds on which the order was passed by the Registrar, it may order restoration of the name of the company in the register of companies: Provided that before passing any order under this section the Tribunal shall give a reasonable opportunity of making representations and of being heard to the Registrar, the company and all the persons concerned: Provided further that if the Registrar is satisfied, that the name of the company has been struck off from the register of companies either inadvertently or on the basis of incorrect information furnished by the company or its directors, which ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ar of Companies by giving clarification in this regard (vide general circular no. 16 Of 2016 dated 26th December, 2016) speaks such that the provision of Section 248 may not be applicable in respect of such companies against which any prosecution for an offense is pending or its application for compounding of offense is pending or any investigation is going on pursuant to order of court are being carried out / are being contemplated by a competent authority, then, the name of the company ought not be removed. 19. Out contention finds support from a decision of the Honble Delhi High Court in the matter of M. A. Paunjwani Vs. Registrar of Companies & Anr. (2015) 192 Comp. Case 380 Dec. Wherein, the Hon'ble Delhi High Court pleased to held that, when there is a litigation pending by or against the company before any competent court of law, in such peculiar facts and circumstances, striking off the name of a company by the ROC was not justified. Thus, such company was ordered to be restored. This Legal Position has been reiterated by the Hon'ble High Court, Andhra Pradesh & Telangana in the matter of Velamati Chandrasekhara Janardan Rao vis M/s. Sree Raja Rqieswari Paper Mills Limit....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... words 'or otherwise' between the words providing for the two types of situations. The presence of the words 'or otherwise' denotes that even if the company was not carrying on any business or was not in operation on the time of striking off, it is still open to the company court to order restoration if it appears to the court to be 'otherwise Just'. I may add that the words 'or otherwise' have not been generally construed ejusdem generis as seen from the judgments of the Supreme Court in Smt. Lila Vati Bai v. State of Bombay, AIR 1 957 SC 521 and Kavalappara Kottarathil Kochuni alias Moopil Nayar v. States of Madras and Kerala, AIR 1960 SC 1080. In Mrs. Helen C. Rebello v. Maharashtra State Road Transport Corporation 119991 95 comp cas 509 (SC) : 119991 1 SCC 90, it was observed by the Supreme Court that the word Just' denotes equitability, fairness and reasonableness having a large peripheral field, hi understanding its scope, one must take into account all the facts and circumstances of the case and then decide what would be Just and equitable. In M.A. Rahim v. Sayari Bai, AIR 1973 Mad 83, it was held by a Division Bench of the Madras Hig....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the petition show that the assets owned and held by the company were not within the knowledge of the persons who were on the board when the resolution was passed to request for striking off the name of the company. The petitioner was the chairman when a request was made. Therefore, on corning to know full details and information on the assets of company with a view to enabling company to claim its assets or administer for the benefit of shareholders prays for restoration of the name in the register. In the considered view of this court, with the striking off the name of the company, the legal and corporate entity enjoyed by the company under the Act is completely denuded. Therefore, for all purposes, it became dead or non-existing in the eye of law. Therefore, either to claim the assets of company or answer the claims of third parties against the company, the restoration of company. In the register of companies is otherwise just. Therefore, this court holds that the petitioner, though was not aggrieved on the day when the application was made, but with the acquisition of subsequent knowledge or information about the assets of the company, the petitioner being the ex-chairman/ shar....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; (c) any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitisation and Reconstruction of financial assets and enforcement of security interest act, 2002, (54 of 2002); (d) the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. (2) The supply of essential goods or services to the corporate debtor as may be specified shall not be terminated or suspended or interrupted during moratorium period. (3) the provisions of sub-section (1) shall not apply to - (a) Such transaction as may be notified by the Central Government in consultation with any financial regulator; (b) a surety in a contract of guarantee to a corporate debtor.] (4) The order of moratorium shall have effect from the date of such order till the completion of the corporate insolvency resolution process: PROVIDED that where at many tim....