NCLT Ordered Restoration subject to Contribution to PM          Relief Fund

Case: Gill Heavens Farms Pvt. Ltd. v. Registrar of Companies, New Delhi

NCLT Bench: Delhi Bench

Struck off by: ROC for non-filling of statutory returns and documents since incorporation under section 560(6) of the Companies Act, 1956.

Application of Restoration –

Appeal Filed by the company contending that, due steps were not taken by registrar in the compliance of the mandatory provisions of section 560(1), 560(2) and 560(3) of Act, 1956, which are a perquisite for striking off the name of the company.

Facts of the case:

·         The ROC, by suo-moto action, struck off the name of the company for non- filling of statutory returns and statements.

·         Applicant contended that, due steps were not taken in accordance with the statutory provisions before striking off the name of the company from their register

·         ROC failed to refuse the said allegations made by the company as the Notice issued under section 560 are not traceable as the records of ROC, NCT of Delhi & Haryana was shifted to Indian Institute of Corporate Affairs

·         In absence of any material to substantiate adherence to the mandatory provisions, the action of strike off would be arbitrary, illegal and against the principles of natural justice.

Order passed:

NCLT in its order stated that Subject to filing of all the statutory documents with the prescribed filing fee and additional fees in compliance with the all statutory requirements, the name of the company, its director and members shall stand restored as if the name of the company had not been struck off.

The primary responsibility for ensuring that, proper returns and other statutory documents are filed, as per terms of statute and rules remain that of the management.

The restoration will be subject to payment of Rs. 1,00,000/- to the Prime Minister Relief Fund and on completion of all formalities within 8 weeks.

Liberty is granted to Registrar to proceed with penal action against the company for violation of any other provisions of the Companies Act, 2013, including Section 192.

Consequences of non-completion of the project as on the specified date under RERA and MOFA

Particulars	RERA, 2016	MOFA, 1963
Options available to the allottees of the project
If the allottee withdraws from the project:	·  He can claim the amount paid by him in respect of that apartment/plot/building, without affecting any other remedy available and ·  Interest @ 2% above the prevalent Highest Marginal cost of lending rate of State Bank of India prevailing on the date on which the amount becomes due and ·  compensation as maybe decided by the Adjudicating Officer	Not Applicable
If the allottee continues with the project:	·   Can claim interest at 2% above the prevalent Highest Marginal cost of lending rate of State Bank of India for every month of delay till the handing over of the possession.	Not Applicable
Penal Provision	·   As per Section 60 of RERA, penalty for contravention of Section 3 and 4 of RERA is 5% of the estimated cost of the real estate project	·   If the promoter fails to give possession of the flat as per the date specified in the agreement or any further date (extension), then he shall be liable on demand to refund the amounts received by him along with interest of 9% p.a. till the date of refund ·   If any promoter contravenes the provisions of Section 4, then on conviction, he shall be punished with a term upto 3 years of imprisonment and /or fine.

Summary:

Thus, it can be concluded that under RERA, allottee has the option to withdraw or continue with the project. However, under MOFA, promoter has to refund the amount to the allottee if the project is not completed within the specified date and there is no option of continuing with the project.