M/S DURGA BUILDERS PRIVATE LIMITED vs M/S SONAL DEVELOPERS PRIVATE LIMITED & ORS

$~11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 13th May, 2024

+ CS(OS) 86/2016, I.A. 2384/2016, I.A. 2385/2016, I.A. 2386/2016, I.A. 2388/2016, I.A. 9070/2019, I.A. 3616/2023, I.A. 24676/2023

M/S DURGA BUILDERS PRIVATE LIMITED ….. Plaintiff
Through: Mr. Adarsh Tripathi & Mr.
Aiitesh Gars, Advs.

versus

M/S SONAL DEVELOPERS PRIVATE LIMITED & ORS
….. Defendants
Through: Mr. Rajesh Ranjan, Mr. Attin
Shankar Rastogi & Mr. Neeraj
Matta, Advs. for D-1 & D-3 to 7
Mr. Praveen Bhati, Adv. for D-2
Mr. Anurag Ahluwalia, CGSC
for D-4.
CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA

J U D G M E N T (oral)
I.A.3616/2023(under Order XXII Rule 4 CPC)
1. The present application has been filed on behalf of the substituted LRs of Defenant No. 3, to file a Written Statement to which an objection has been taken on behalf of the plaintiff on the ground that an absolute new defence is sought to be taken by filing a Written Statement by the Defendants who have stepped into the shoes of the deceased Defendant No..
2. Learned counsel appearing on behalf of the LRs of Defendant No. 3 submits that they have come to know about a total fraud which has been committed on the Defendants.
3. After some arguments, he seeks permission to withdraw the present Application to move a fresh amendment Application.
4. The application is permitted to be withdrawn with the liberty as prayed for.
5. The present application is accordingly disposed of.
I.A.24676/2023(Under Section 248 read with Section 250 of the Companies Act, 2013 and Order XXII Rule 8 CPC))
6. The present application has been filed under Section 248 read with Section 250 of the Companies Act, 2013 and Order XXII Rule 8 CPC on behalf of the Defendant No. 1, seeking dismissal of the Suit as infructuous.
7. It is submitted in the application that the plaintiff Company was incorporated on 22.02.1985 with the Registrar of Companies (NCT of Delhi and Haryana). Section 137 of the Companies Act, 2013 mandates the Company to file its annual accounts with the Registrar of Companies, Ministry of Corporate Affairs (MCA), within 30 days from the date of holding the AGM every year.
8. The Master Data of the plaintiff available at the MCA website, evidences that it has not prepared and filed its annual Accounts since the year 2007. Non-preparing, non-finalizing and non-filing of the mandatory annual Accounts of the Plaintiff for the last 16 years, is suggestive of the fact that the plaintiff has not been carrying on any business or operations in terms of sub-section (2) of Section 248 of the Companies Act, 2013.
9. The Notice under Section 248(5) dated 08.08.2018 was issued by Ministry of Corporate Affairs through the Registrar of Companies (NCT of Delhi and Haryana) for striking off the name of the plaintiff Company and dissolving it accordingly. The Directors of the Plaintiff Company Mr. Saurabh Kapoor and Mr. Divij Mehra filed an Appeal bearing number 146/252/ND/2019 before the National Company Law Tribunal, Court No V, New Delhi under Section 252 of the Companies Act for restoration of the name of the Company maintained by the Registrar. However, the Appeal was dismissed, against which the plaintiff Company filed a Company Appeal No. 154/2021 before NCLAT. The Appeal was allowed vide Order dated 15.12.2022 whereby the Order of striking of the plaintiff Company was set aside subject to 3 conditions as were incorporated therein to be complied for the Revival of the Plaintiff Company before the issue of fresh Certificate of Incorporation.
10. It is submitted in the application that a cost of Rs. 50,000/- imposed by the NCLAT, has been claimed to have been deposited vide Challan No. X34332247 dated 30.01.2023 but it has been deposited by some individual Mr. Akash Jaiswal who is not connected to the Plaintiff Company in any manner. The amount has not been paid by the Plaintiff Company from its own source since it has been completely inactive, opaque and dormant and it does not even have a Bank account in its name.
11. The NCLAT for revival and restoration of the plaintiff Company, had also directed compliance of the mandatory provisions of the Companies Act in regard to filing of Annual Returns and Balance Sheet for the past years within 8 weeks i.e. 30.01.2023. The plaintiff Company has not even appointed an Auditor to prepare the Annual Reports for the last 16 years and continues to be in default of the provisions because of which its name was struck off from the records of Registrar of Companies.
12. The plaintiff has failed to file its Balance Sheet from 08.01.2023 and therefore, the condition imposed by the NCLAT has not been satisfied.
13. It is further submitted that temporary restoration of the name of Plaintiff Company on the portal of Registrar of Corporate Affairs to enable the Statutory annual findings of the Company, is only a technical part of the final restoration envisaged under Section 252 of the Companies Act. The restoration process would be complete only on the issuance of fresh Certificate of Incorporation.
14. The search of public documents against the name of the Corporate Identification Number of the Plaintiff Company on the portal of Ministry of Corporate Affairs, reveals that no files have been made by the Plaintiff Company. In view of this, the Suit of the plaintiff is liable to be dismissed as abated under Order XXII Rule 8 CPC.
15. The counsel for the Defendant has relied upon the case Rainawari Finance & Investment Company Put. Ltd. Through its Director Jeane Fernades v. Income Tax Officer (2023 SCC Online J&K 887).
16. The plaintiff in its detailed reply to the application has denied all the averments made in the Application. It is submitted that Order XXII Rule 8 CPC specifies the procedure in case of insolvency. The plaintiff Company is not under liquidation and therefore, Order XXII Rule 8 is not applicable.
17. It is further submitted that this application is mala fide as it is a clever attempt on behalf of the Defendant No. 1 to claim that the plaintiff company has ceased to exist, its name having been struck off from the records of ROC.
18. The plaintiff submits that he has complied with all the three directions imposed by the NCLAT vide Order dated 15.12.2022 for the restoration of its Company. It has deposited the cost of Rs. 50,000/- and now the Plaintiff Company as per the Registrar of Companies, NCT of Delhi and Haryana records/ master data, is shown as active. It is further submitted that Akash Jaiswal who had deposited the cost of Rs. 50,000/-, is the Company Secretary and is an authorised representative of the plaintiff Company.
19. Furthermore, after the restoration of the Company’s name, all the Annual Returns of the previous years have been prepared and because of their voluminous nature, permission is being sought from the ROC to file them in offline mode. the TDS has also been deposited as per the past pending demand, on the Income Tax portal.
20. Reliance has been placed on Indian Explosives ltd. V. Registrar of Companies 2010 SCC OnLine Del 1613, Umedbhai Jhaverbhai v. Moreshwar Keshav & Ors.AIR 1954 Madhava Bharat 146 and Ramesh Kumar Chitlangia & Ors. v. Registrar of Companies 2020 SCC OnLine NCLAT 895 to its support that the company is Active and it has been relied on the Master Data of the ROC. It is therefore submitted that the application is without merit and is liable to be rejected.
21. Submissions heard.
22. The NCLAT vide its Order dated 15.12.2022 had imposed the following conditions for the restoration of the Plaintiff Company:
i) Appellant shall pay costs of Rs. 50,000/ – (Rupees Fifty Thousand) to the Registrar of Companies, NCT Delhi & Haryana within 08 (Eight) weeks from passing of this Judgment.
ii) After restoration of the Company’s name in the Register maintained by the RoC, the Company shall file all their Annual Returns and Balances Sheets. The Company shall also pay requisite charges (fee as well as late fee/charges as applicable within 08 (Eight) weeks thereafter.
23. The first condition of deposit of Rs. 50,000/- as cost, has admittedly been complied with, though the objection had been taken that the amount had been deposited by Mr. Akash Jaiswal, who apparently has no connection with the plaintiff company. First and foremost, the cost as directed has already been deposited for on behalf of the plaintiff. Secondly, it has been explained that Mr. Akash Jaiswal is the Company Secretary of the plaintiff company. It is evident that the first condition imposed by the NCLAT has been duly complied.
24. The second condition that was imposed by the NCLAT was that after the restoration of the Company’s name in the register maintained by ROC, it shall file all the Annual Returns and the balance sheets. It has been explained by the plaintiff that as the Annual Reports since 2008 took some time to be prepared and also are voluminous, permission is being sought from the Registrar of Companies to file it offline.
25. Learned counsel appearing on behalf of the plaintiff further clarified during the course of arguments, that all the TDS amount has been deposited and also the online filing of the Annual Income Tax Returns is also being effected. In so far as the past Annual Returns are concerned, the same are also in the process of being filed. It is also submitted that the requisite conditions as imposed in the Order of NCLAT have already been complied with. It has also been pointed out that the Order directing the filing of returns, is after the restoration of the Company.
26. At present, the Company has been made active to enable the filing of annual returns.
27. The conditions imposed by the NCLAT stand complied with. At this stage, it cannot be said that the Company is dead and the Suit stand abated.
28. The application is without merit and is hereby dismissed.

CS(OS) 86/2016
29. List before the learned Joint Registrar for plaintiff’s evidence on 08.07.2024.

(NEENA BANSAL KRISHNA)
JUDGE
MAY 13, 2024
PT

CS(OS) 86/2016 Page 7 of 7