Disposed

M/S. Marjan Gold Pvt.Ltd., v. Union of India

Kerala HC1 Feb 2022WP(C)/13931/2021

Case brief

AI extract

What is this about?

In this writ petition concerning the striking off of a company's name due to default in filing annual returns, the court held that since the order is appealable before the NCLT, the petitioners must approach the statutory appellate forum instead of seeking writ relief.

What did the court decide?

The writ petition is disposed of; petitioners are directed to move the National Company Law Tribunal (NCLT) for redressal of grievances.

M/S. Marjan Gold Pvt.Ltd., Vs Union of India — Company and Corporate | Kerala HC (2022)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR.JUSTICE N.NAGARESH

¶4

TUESDAY, THE 1ST DAY OF FEBRUARY 2022 / 12TH MAGHA, 1943

¶5

WP(C) NO. 13931 OF 2021

¶6

PETITIONERS:

¶7

1 M/S. MARJAN GOLD PVT.LTD., A.V.K. NAIR ROAD, P.O. KOYILANDY , THALASSERY, AND PRESENTLY AT SHOP NO. 27/152K, K.D.C. BANK BUILDING, MAIN ROAD, KOYILANDY REPRESENTED BY ITS MANAGING DIRECTOR K.K HANEEFA KAIRALI VILLA, P.O. MOODADI NORTH, KOYILANDY, KOZHIKODE 673 307.

¶8

2 K.K. HANEEFA,AGED 53 YEARS S/O. IBRAHIM HAJI, KAIRALI VILLA, P.O. MOODADI NORTH, KOYILANDY KOZHIKODE 673 307.

¶9

3 SHAJINA HANEEFA,AGED 44 YEARS W/O.K.K. HANEFFA, KAIRALI VILLA, P.O. MOODADI NORTH, KOYILANDY KOZHIKODE 673 307.

¶10

BY ADVS.

¶11

M.R.VENUGOPAL
DHANYA P.ASHOKAN
NIKITA SUHANESH

¶12

RESPONDENTS:

¶13

1 UNION OF INDIA REPRESENTED BY SECRETARY, MINISTRY OF CORPORATE AFFAIRS, 5TH FLOOR, A WING, SHASTRI BHAVAN, NEW DELHI 110 001.

¶14

2 THE REGISTRAR OF COMPANIES, IST FLOOR, COMPANY LAW BHAVAN, B.M.C. ROAD, TRIKKAKKARA P.O. KAKKANAD, KOCHI 682 021.

¶15

3 KHALID HAJI,AGED 59 YEARS S/O. ABUBACKER, P.O. HOUSE, NEAR KERALA GRAMIN BANK, MATTOOL NORTH P.O. KANNUR 670 325. BY ADV SRI.K.SHRI HARI RAO, CGC-R1 & R2 SRI. S. MANU- ASGI

¶16

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
01.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶17

WP(C) NO. 13931 OF 2021 2

¶18

JUDGMENT

¶19

Dated this the 1^st day of February, 2022

¶20

The 1^st petitioner is a Company doing business in jewellery. The 2^nd respondent is the Manager of the Company and the 3^rd respondent is supervising the works.

¶21

The petitioners submit that on 26.10.2007, the 3^rd respondent and 20 identifiable persons wrongfully and forcefully took away 25 Kg of gold worth `3 Crores from the business premises of the Company. A crime was registered and a final report was also filed before the Magistrate’s Court. The said incident caused serious difficulties in the functioning of the Company. Petitioners 2 and 3 were running from Court to Court. In such circumstances, the petitioners could not upload the Financial Statement and Annual Returns. The filing of statutory returns was defaulted.

¶22

In the circumstances, the 2^nd respondent struck off the name of the Company from the Register of Companies. The petitioners state that before striking off the Company, the 2^nd

¶23

WP(C) NO. 13931 OF 2021 3

¶24

respondent ought to have sent a letter to the petitioners enquiring whether the Company is carrying on business or not. The petitioners were not issued with any notice. Striking off of the 1^st petitioner-Company from the Register of Companies, therefore, is illegal and unsustainable. The petitioners therefore sought to quash Ext.P2 and to direct the respondents not to pursue any action against the petitioners without following the mandate of Section 560 of the Companies Act, 1956.

¶25

The learned Central Government Counsel entered appearance and defended the writ petition. The learned Central Government Counsel controverted all material allegations made in the writ petition. A Statement was also filed on behalf of respondents 1 and 2.

¶26

Respondents 1 and 2 submitted that Form No.STK 5 notice was published in English and Vernacular Dailies regarding the striking off of the name of the Company invoking Section 248 of the Companies Act, 2013. A Gazette Notification was also published on 21.07.2017. As per the provisions of Section 252 of the Companies Act, 2013 (hereinafter referred to

¶27

WP(C) NO. 13931 OF 2021 4

¶28

as ‘the Act, 2013’), the striking off of the name of the Company invoking Section 248 of the Act, 2013, is appealable before the National Company Law Tribunal (NCLT), Kochi Bench.

¶29

I have heard the learned counsel for the petitioners

¶30

and the learned Central Government Counsel representing the respondents.

¶31

The specific case of the petitioners is that due to a criminal offence committed in the premises of the 1^st petitionerCompany, the petitioners could not promptly follow up the filing of the Annual Returns and Financial Statements of the Company for a long period. The petitioners were defending Court cases. In such circumstances, there occurred default in filing Financial Statement and Annual Returns. In the meanwhile, the name of the Company was struck off. Striking off of the name of the Company would cause irreparable loss and injury to the petitioners and other shareholders.

¶32

Even if the facts are so, as pointed out by the learned Central Government Counsel, the impugned order is an appealable order under Section 248 of the Act, 2013. When the

¶33

WP(C) NO. 13931 OF 2021 5

¶34

statute provides an appellate remedy, it will be only proper for the petitioners to approach the statutory Appellate Forum namely, National Company Law Tribunal. Therefore, this Court is of the considered opinion that the petitioners should be relegated to the NCLT for redressal of their grievances.

¶35

In the circumstances, the writ petition is disposed of permitting the petitioners to move the NCLT for redressal of their grievances against the striking off of the Company from the Register of Companies. As the petitioners have been prosecuting this writ petition against the striking off of the company, it will be only just and proper that if the petitioners file appropriate application /appeal before the NCLT, the NCLT decide the matter on merits.

sd/-

N.NAGARESH

JUDGE

hmh

WP(C) NO. 13931 OF 2021 6

¶41

APPENDIX OF WP(C) 13931/2021

¶42

PETITIONER EXHIBITS

¶43

Exhibit P1TRUE COPY OF THE FINAL REPORT DATED
29/03/2008 IN CRIME NO. 581/2007 OF
THALASSERY, POLICE STATION.
Exhibit P2TRUE COPY OF COMPANY MASTER DATA
PUBLISHED IN THE WEBSITE OF THE 2ND
RESPONDENT.
Exhibit P3TRUE COPY OF THE LETTER DATED 03/02/2021
ISSUED BY THE IST PETITIONER TO THE 2ND
RESPONDENT.

¶44

RESPONDENT’S EXHIBITS NIL

M/S. Marjan Gold Pvt.Ltd., v. Union of India

Case brief

What is this about?

What did the court decide?

M/S. Marjan Gold Pvt.Ltd., v. Union of India

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

R. Elangovan Vs the Inspector

Mayamol M. Vs State of Kerala

Jyothi Lakshmi K.M. Vs the Central Bank of India

L R Lakshmanan, Vs Kerala State Electricity Board Ltd.

M/S.Irikkur Construction Company Vs the Project Director

Mohammed Musthafa, Vs Kerala Water Authority