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TMI Blog2023 (5) TMI 869X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent No.1 (Sankalp Buildwell Pvt Ltd). The Learned NCLT while allowing IA No.216/2022 dismissed CP No.58/ND/2012. The order impugned for better appreciation is reproduced as follows: The present IA No. 216 of 2022 has been filed by Sankalp Buildwell Private Limited (hereinafter, referred to as the 'Applicant'), which is the Respondent No.1 in the main Company Petition No. 58(ND)/2012, under Rule 11 of NCLT Rules, 2016 seeking the following main relief: "al The Company petition being C.P. No. 58(ND)/2012 [Panthera Developers Private Limited vs. Sankalp Buildwell Private Limited & Ors.] pending before this Hon'ble Tribunal be dismissed." 2. The Applicant herein has sought dismissal of CP. No. 58/ND/2012 on the ground that the Applicant in that CP viz., M/s. Panthera Developers Private Limited was struck off from the register of ROC on 08.08.2018 vide Notice No. ROC/DELHI/248(5)/STK-7/4865 of the RoC. In the CP. No. 58/ND/2012, the petitioner M/s Panthera Developers Private Limited had sought the following reliefs: i) "Direct Respondent no.4 and 5 to produce documents verifying their appointment as nominee Directors for taking any further action in this regard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anies Act, 2013 was preferred by it, which was allowed by this Tribunal vide order dated 15.05.2019 subject to payment of cost of Rs. 25,000/- to the Prime Minister Relief Fund. The restoration of the petitioner company's name in the Register was further subject to their filing all outstanding documents for the defaulting years as required by law and completion of all formalities, including payment of any late fee or other charges which are leviable by the respondent for the late filing of statutory returns. 5. During the course of hearing, the Applicant brought to our attention that the CA. No. 448 of 2022 filed in Appeal No. 209/252(ND)/2019 by one of the shareholders of M/s. Panthera Developers Private Limited, under Rule 11 of NCLT Rules 2016, for seeking modification of the order dated 15th May 2019 to the extent of removing condition of filling of pending documents with the Registrar of Companies, NCT of Delhi and Haryana, has already been dismissed by this Tribunal vide order dated 23.12.2022 with cost of Rs. 50,000/- to be deposited by the Applicant in the Prime Ministers Relief Fund. 6. At this stage, we also consider it appropriate to refer to the master data of M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or any books of account And papers are maintained - E mail ID [email protected] Whether listed or not Unlisted ACTIV compliance Suspended at stock exchange - Date of last AGM 29/09/2012 Date of Balance Sheet 31/03/2012 Company Status (for efiling 0 Strike off\ Charges Charge Id Assets under charge Charge Amount Date of creation Date of Modification Status No charges exists for Company/LLP Directors/Signatory Details Din/pan Name Begin date End date Surrendered 01431119 DHARAM VIR CHUGH 30/09/2011 - 01877020 DEVINDER PARKASH KALRA 30/09/2011 05242508 ANURADHA KALRA 30/12/2014 2. The short fact of the case is that the appellant herein long back in the year 2012 had filed CP No.58/2012 under Section 397 and 398 read with Section 402 and 403 of the Companies Act, 1956 primarily making an allegation of oppression and mismanagement of Respondent No.1 company. In the CP 58/2012 the appellant herein has prayed for following reliefs: (i) Direct Respondent no.4 and 5 to produce documents verifying their appointment as nominee Directors for taking any further action in this regard by the Responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hi. 4. The appellant in CP No.58/2012 had claimed that it was holding 60000 Class A equity shares of Respondent No.1 company. Subsequently after the name of the company was struck off from the register of ROC by order dated 08.08.2018 the appellant filed an appeal under the provisions of Section 252 of the Companies Act, 2013 before the NCLT vide Appeal No.209/252/ND/2019. It was admitted by the appellant before the NCLT that the appellant had failed to file its annual return and financial statements after the year ending 31.03.2012. The appellant company also admitted its default in carrying out the statutory compliances but a plea was taken that it happened due to a dead lock in the management of the company. A plea was taken that without following the principles of natural justice the ROC had passed the order of striking off the name of the company. The NCLT after considering the facts and circumstances allowed the appeal by its order dated 15.05.2019 considering it just and equitable to restore the name of the company in the register of companies. Learned NCLT allowed the application for restoration subject to payment of cost of Rs.25000/- to the Prime Minister's Relief Fund. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant had filed CP No.58/2012. According to learned counsel for the appellant even after the company's name was struck off the CP was needed to be continued in the light of law laid down by Hon'ble Supreme Court as well as other orders passed by different courts. 8. Learned Counsel for the appellant has placed heavy reliance on a judgement of Hon'ble Supreme Court reported in (2020) 7 Supreme Court Cases 654 (Commissioner of Income Tax, Jaipur Vs. Gopal Shri Scrips Pvt Ltd). It was argued that in Gopal Shri Scrips Pvt Ltd case (Supra) the Income Tax Department had assailed the order of the Hon'ble High Court of Rajasthan whereby appeal preferred by assesse was dismissed having become infructuous in view of the fact that the name of the company was subsequently struck off under Section 560(5) of the Companies Act, 1956. He submits that Section 560 of the Companies Act, 1956 (old act) is similar to Section 241-242 of Companies Act, 2013. He has specifically drawn our attention to para 10 of the Hon'ble Supreme Court Judgement which is quoted hereinbelow: "12. In our view, the High Court was wrong in dismissing the appeal as having rendered infructuous. The High Court failed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the restoration order passed under Section 252 of the Companies Act and was dismissed with imposition of cost of Rs.50,000/-, the appellant's appeal is pending before this Appellate Tribunal. Accordingly, he submits that the order impugned in the present appeal is liable to be set aside on the ground that even after striking off the name of the company from the register of ROC the CP No.58/2012 was maintainable. 11. Mr. Kaushik Chatterjee, learned counsel for the Respondent who had also filed caveat application in the present appeal opposing the appeal submits that once the appellant company cease to remain as company the Learned NCLT has rightly allowed the application filed by the Respondent No.1 for dismissal of CP No.58/2012 which was primarily filed on an allegation of oppression and mismanagement of Respondent No.1. He submits that after the name of the appellant company was struck off from the register of ROC there was no reason to allow the said company petition to further continue. He further submits that the non-seriousness on the part of the appellant is evident from the fact that after the submission of annual return/statement lastly on 31.03.2012 before the ROC, n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpany was struck off from the register of the ROC. CP No.58/2012 was filed by the appellant in the capacity of company incorporated under the Companies Act. Once the name of the appellant company was ceased to be company it was not competent to maintain the CP No.58/2012. The Learned NCLT rightly dismissed the same by the impugned order At this juncture it would be appropriate to examine Section 250 of the Companies Act which is reproduced hereinbelow:- "250. Effect of company notified as dissolved-Whether a company stands dissolved under Section 248, it shall on and from the date mentioned in the notice under sub-section (5) of that section cease to operate as a company and the Certificate of Incorporation issued to it shall be deemed to have been cancelled from such date except for the purpose of realising the amount due to the company and for the payment or discharge of the liabilities or obligations of the company." 13. On examination of the aforesaid provision there is no doubt that after the striking off the name, a company ceases to remain as a company. However, even after dissolution of the company in view of striking off its name from the register, its existence remains ..... X X X X Extracts X X X X X X X X Extracts X X X X
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