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2019 (9) TMI 465

..... ulent activities of one of the Directors of the Company involving theft of machineries and raw materials to the extent of ₹ 2 Crores is taken note of by the Tribunal in the impugned order. In the given circumstances, it would be unjust to strike off the name of Company from the Register of Companies merely because it failed to apply for seeking of a Dormant Status. The twin grounds projected at the hearing constitute a valid and just ground for restoring the Company on the Register of Companies - restoration of the name of the Company on the Register of Companies is allowed subject to the Appellants complying with all the statutory requirements for the defaulting period and paying off the fee including penalties leviable thereon warra .....

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..... he Tribunal ) in Appeal No. 510/252/ND/2018 on the ground that the Company had not done any business after the year 1999 and the Company had failed to apply for obtaining the status of a dormant company. The huge delay of 19 years in starting the business activities of the Company also weighed with the Tribunal in dismissing the appeal. 2. The case setup before the Tribunal for restoration of the Company s name to the Register of Companies was that the Company had been doing a good business and earning profits till the year 1999. It was during the period between 1st February, 1999 to 26th July, 1999 that one of the Directors cum Shareholder in connivance with some staff members committed theft of stock of raw material, work in progress, fin .....

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..... shed that the Company had not done any business after the year 1999. The Tribunal accepted the plea of Appellants that one of the Directors of the Company had dishonestly removed the machinery and raw materials valued at around ₹ 2 Crores, however, it observed that the Company had no reason not to file statement with ROC under Section 455 of the Act to obtain the status of a Dormant Company. 19 years huge delay in not starting the business was also a circumstance weighing against allowing restoration of the name of the Company to the Register of Companies. 3. It has been urged in the instant appeal that the Company was earning profits till the year 1999, however, during the period intervening between 1st February, 1999 to 26th July, 1 .....

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..... gned order is said to be erroneous in as much as the Tribunal, despite acknowledging the factum of the raw material, machinery and finished goods, etc. of the Company having been stolen by one of the Directors leading to halting of business activities and seizure thereof by Police during investigation in the aforestated FIR, failed to appreciate that the Appellants could not have recovered the same as the Company s name was struck off from the Register of Companies. The impugned order is also assailed on the ground that the Tribunal failed to take notice of FIR No. 301/16 filed at Saraswati Vihar Police Station, Delhi in August, 1999 against the accused Director for illegal transfer of Car of the Appellant Company in the name of his Brother .....

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..... eard and the Company has been struck off without affording it an opportunity of being heard. This has been seriously contested by the Respondent. So far as observance of procedure embodied in Section 248 of the Act regulating striking off the company from Register of Companies and removal of its name for its failure to commence operations or not being in operation or not carrying on its business during the relevant period i.e. for two financial years immediately preceding the relevant financial year, is concerned, after going through the reply affidavit of Respondent and the available record including the Gazette Notification published for June 24- June 30, 2017, we are satisfied that the Company figuring at serial number 19461 of the Gazet .....

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..... e from the Register of Companies. It is a matter of record that the factum of fraudulent activities of one of the Directors of the Company involving theft of machineries and raw materials to the extent of ₹ 2 Crores is taken note of by the Tribunal in the impugned order. In the given circumstances, it would be unjust to strike off the name of Company from the Register of Companies merely because it failed to apply for seeking of a Dormant Status. 8. In view of the foregoing discussion, we are of the considered opinion that the twin grounds projected at the hearing constitute a valid and just ground for restoring the Company on the Register of Companies. We accordingly set aside the impugned order, allow the appeal and direct restorati .....

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